IN THE SUPREME COURT OF THE UNITED KINGDOM UKSC 2015/0255 ON APPEAL FROM THE COURT OF APPEAL (CIVIL DIVISION) BETWEEN: R (PUBLIC LAW PROJECT) -and- LORD CHANCELLOR APPELLANT S WRITTEN CASE Appellant Respondent PART 1: THE CONTEXT Introduction 1.1 This printed case is accompanied by an Explanatory Appendix (pp.ea1-ea51). It explains the nature of the priority areas of greatest need for legal aid, from which the residence test excludes irregular and recent migrants. It illustrates the consequences of doing so. The Divisional Court (DC), who unanimously upheld this claim for judicial review, grappled with the substance of the scope of priority legal aid and faced up to the implications of its withdrawal for irregular and recent migrants. The Court of Appeal (CA), who unanimously rejected the claim for judicial review, with respect did not. Context is everything, and the Court is asked to read the Explanatory Appendix and test the arguments in this case against it. 1.2 The Public Law Project ( PLP ) appeals against the decision of the CA, overturning the DC and holding that the Lord Chancellor (LC) may lawfully and by secondary legislation introduce, for the first time in the 65-year history of civil legal aid in England and Wales, a residence test for eligibility. The proposed residence test would require an applicant for civil legal aid to prove that they are currently, and have for a continuous 12 month period been, lawfully resident in the UK. This requirement would apply to those who seek legal assistance in one of the areas of highest priority 1 MS Page No 6929
need which were retained within the scope of civil legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO ) (Auth 1/1), and in addition to the statutory means and merits requirements. As the DC explained, the effect of the proposed residence test involves these features (annotations added) (DC 2):... to exclude those [i] who have a better than 50:50 chance of establishing [ii] a claim, the subject matter of which is judged as having the highest priority need for legal assistance, but [iii] without the means to pay for it, on the grounds [iv] that they lack a sufficiently close connection with [v] the country to whose laws they are subject. Under the residence test, legal aid would therefore be denied when it is needed to enforce underlying rights which Parliament and the common law have made available to all including irregular and recent migrants. 1.3 PLP s challenge to the lawfulness of the residence test raises two issues: (1) Vires. Can the LC make such a change to the scope of civil legal aid by using a delegated power to amend primary legislation? (2) Discrimination. It being accepted that the residence test is discriminatory, is the unequal treatment justified by legitimate aims? The 3-judge DC accepted PLP s arguments on both issues, and was right for the reasons it gave. The CA disagreed, and was wrong to do so. 1.4 Vires. As to vires, the DC held (Moses LJ giving the leading judgment) that the purpose of LASPO was to confine civil legal aid to cases which are judged to be of greatest need (DC 37). The power conferred on the LC was to serve and promote the objects of the Act by providing an opportunity... to add, vary or omit those cases when, from time to time, he judges that a greater need has arisen or a lesser need has emerged for distribution of civil legal aid (DC 40). As the residence test has nothing to do with need or an order of priority of need (DC 43), it is ultra vires the power given to the LC. For its part, the CA (Laws LJ giving the leading judgment) agreed that LASPO had acted to confine legal aid to categories where the need for civil legal aid is pressing, considering it obvious that in circumstances of financial stringency choices as to the disposition of public funds in a particular area will focus on need for the service in question (CA 21). However, the CA 2 MS Page No 6930
did not accept that the power conferred on the LC to amend LASPO was confined to amendments which were based on need. Instead the CA found that the power was clearly wide enough to encompass characteristics of a class which to a rational mind are material to the heightened efficiency of civil legal aid: an objective which plainly includes the saving of public funds (CA 23). 1.5 At its heart, the vires issue is about whether the carefully designed statutory scope of legal aid for areas of assessed priority need can be amended using secondary legislation (a Henry VIII clause) to introduce a restriction which has nothing to do with need. 1.6 Discrimination. As to discrimination, both the DC and the CA agreed that access to justice is a context which attracts a heightened degree of scrutiny: because of the law s special responsibility to ensure that in a democratic society every individual is to be treated as an end and not a means by a justice system which... insists on high standards of fairness applicable in every case (CA 38); and when what is at stake is the protection which domestic law affords to all who fall within its jurisdiction (DC 78); where the context is the vindication of legal rights (DC 81); and where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not (DC 84). The Courts below diverged in the CA s conclusion that the discriminatory denial of legal aid in an area of greatest need has nothing to do with access to justice because there is no common law right to legal aid (CA 45-46), whereas as the DC explained: 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 (DC 77). The absence of a common law right to legal aid was nothing to the point, for the question was not whether Government could refuse all legal assistance to anyone, irrespective of residence but whether it could withhold it on a discriminatory basis (DC 81). 1.7 At its heart, the discrimination issue is about whether a discriminatory refusal of legal aid in priority areas of greatest need requires strict scrutiny because it engages access to justice. The answer is that legal aid does engage the right of access to justice, as the LC himself recognised when designing the scope of LASPO and applying criteria to identify greatest need. Rights and their vindication matter in a way which is special, as does accountability of public authorities under the rule of law; especially so, in areas of greatest human need. Once the legislature and the common law have determined that 3 MS Page No 6931
there are applicable legal rights for foreigners too (including welfare benefits ), statefunded legal aid to vindicate those rights where they are refused is about promoting access to justice and accountability of public authorities under the rule of law. A residence restriction, which effectively focuses on national origin and immigration status, cannot in such a context be justified. If the underlying right is available equally to foreigners, so must the means of enforcing that right be. The DC was right. LASPO s Background and Scheme 1.8 LASPO comprehensively restructured civil legal aid in England and Wales. The LASPO Bill followed a public consultation of proposals to reform civil legal aid. 1 As the Ministry of Justice ( MoJ ) explained in the Introduction to its proposals ( 4.4), very difficult choices were being made about where funding continues to be justified. This was design of scope based on a detailed consideration from first principles of which issues should attract public funding in the light of the financial constraints (App 2A p.232). 1.9 In the accompanying Impact Assessment relating to the reform of the scope of civil legal aid, the MOJ set out to identify the negative impacts on individuals and balance these against the assessed benefits of the proposals. It identified an anticipated 274m of savings as a result of the reduction in legal aid (App 2A p.340 45). It balanced that likely saving against an estimated 2m of implementation costs ( 37) and against the impact on individuals (App 2A pp.338-339 35), including the potential deterioration in case outcomes, including, in some cases case outcomes for the client may be significantly worse the fairness of dispute resolution may be significantly worse It addressed potential knock-on effects including reduced social cohesion ; increased criminality ; reduced business and economic efficiency ; if civil and family issues are not resolved effectively people might continue to rely upon the state, including because failure to resolve one issue may lead to another arising (App 2A p.339). There was a 148-page Equalities Impact Assessment (App 2A pp.368-516) which analysed the impact of the proposals on those with protected characteristics in relation to each of the areas where 1 Proposals for the Reform of Legal Aid in England and Wales, November 2010, Cm 7967 (App 2A pp.200-229). 4 MS Page No 6932
reforms were proposed, and balanced it against the likely financial savings in each area. 2 1.10 The consultation received over 5,000 responses. The Government Response was published in June 2011 (App 2A pp.517-686). In a Ministerial Foreword the LC (then Kenneth Clarke MP) explained that the overall effect of the bold reforms proposed should be to achieve significant savings whilst protecting fundamental rights of access to justice 3 (pp.519-521). The rationale for the proposed reforms to the scope of legal aid was to refocus legal aid on those who needed it most, for the most serious cases in which legal advice or representation were justified (Chapter 3: The Programme of Reform, 5) (App 2A p.527). 1.11 Government had analysed in detail the case for retaining in or excluding from scope each area of civil legal aid, including by reference to the equalities impacts. The Government set out the four key access to justice factors 4 which had been addressed (DC 73): (1) the importance of the issue: cases involving the individual s life, liberty, physical safety and homelessness were considered to be a high priority, as were cases where the individual faces intervention from the state, or seeks to hold the state to account ; (2) the litigant s ability to present their own case: considerations included the type of forum in which the proceedings are held, whether they are inquisitorial or adversarial, where litigants bringing proceedings were likely to be from a predominantly physically or emotionally vulnerable group (for example, as a result of their age, disability or the traumatising circumstances in which the proceedings are being brought) ; (3) the availability of alternative sources of funding: where litigants are able to fund their case in other ways, for example through a Conditional Fee Agreement (CFA), legal insurance, or as a member of a trade union ; (4) the availability of other routes to resolution: in determining the priority for certain types of case, we considered whether people might be able to access other sources or advice to help resolve their problems, avoiding the need for court proceedings. Examples 2 See 9.2 of PLP s Analysis in the courts below (App 2C pp.1692-1693). 3 Underlining in quotations connotes emphasis added. 4 LASPO Decision Document 5-6 (App 2A pp.527-528); see too Consultation Paper, November 2010, 4.12 (App 2A pp.234-236). 5 MS Page No 6933
include, advice on welfare benefits, (housing and other benefits), or the availability of an ombudsman scheme, or complaints procedures. 5 1.12 It is right to describe these as access to justice factors. They are the same factors which have been identified by the case-law as to access to justice in this area: see the ECHR and EU case-law conveniently summarised in C-279/09 DEB [2011] 2 CMLR 21 (Auth 4/33), Advocate-General at 66, CJEU at 46, 61, citing cases such as Airey v Ireland (1979 80) 2 E.H.R.R. 305 at [26] (Auth 8/76); McVicar v United Kingdom (2002) 35 E.H.R.R. 22 at [48] and [49] (Auth 8/81); P, C and S v United Kingdom (56547/00) (2002) 35 E.H.R.R. 31 at [91] (Auth 8/82), and Steel & Morris v United Kingdom (2005) 41 E.H.R.R. 22 at [61] (Auth 9/85).The Bill to implement the LASPO reforms was laid before Parliament on 21 June 2011. Its contents were closely scrutinized and extensively debated during its passage through Parliament (e.g. App 2F pp.2742-2828), leading to a number of modifications including to the scope of civil legal aid under the Act, as well as to the power conferred on the LC to amend LASPO so as to change the scope of civil legal aid. 1.13 The basic scheme and structure of civil legal aid under LASPO (Auth 1/1) is as follows: (1) The LC has a duty to secure that legal aid is made available in accordance with Part 1 of LASPO: s.1(1). Legal aid is defined as civil legal services specified in ss.9 and 10 LASPO, and part 3 of Schedule 3 (the latter of which relates to legal aid for legal persons). (2) Part 1 of Schedule 1 sets out listed priority areas (see Explanatory Appendix (pp.ea1-ea51)) for which civil legal services are in scope and available (s.9(1)(a)) to those eligible (s.9(1)(b)). (3) The civil legal services available in each of those listed priority areas are subject to specified exceptions set out within Part 1 but also in Parts 2 and 3 of Schedule 1, which broadly relate to the nature of the proceedings (Part 2) and the proceedings in which advocacy services which may be provided (Part 3). For example, legal aid is available (Part 1 1(1)) for proceedings relating to the care, supervision and protection of children, but subject to all of the exclusions in 5 Reform of Legal Aid in England and Wales: the Government Response, section 3, 6 (App 2A pp.527-528); and June 2011 Decision Document, Annex A, analysing each area by reference to these four factors (App 2A pp.594-619). 6 MS Page No 6934
Parts 2 and 3 ( 1(3)). Part 2 excludes, among others, personal injury claims (Part 2 1) and negligence claims ( 2) and Part 3 excludes advocacy services except in the High Court ( 3), a county court ( 5) or a magistrates court ( 7). The combined effect is that legal aid is available for public law family proceedings including advocacy at court. (4) Before civil legal aid is provided to an individual in any of those priority areas, the Director of Legal Aid Casework ( the Director ) must be satisfied that the individual qualifies for legal aid. There are two aspects to this eligibility: (i) a means assessment in accordance with the financial eligibility regulations (Auth 1/4) made under s.21 LASPO: s.11(1)(a); and (ii) a merits assessment in accordance with criteria set out in regulations (Auth 1/3) made under s.11(1)(b). Both the means and the merits criteria vary according to the priority area in relation to which civil legal services are sought. For representation in litigation, the merits test importantly requires those seeking legal aid to satisfy the Director that pursuing a legally aided claim is a last resort: they must have no other potential funding source, it must not be reasonable for anyone else to pursue the claim, the claim must be unsuitable for a CFA, all reasonable alternatives to litigation must be exhausted and there must be a demonstrable need for representation in all the circumstances of the case 6. (5) In cases falling outside the listed priority areas, civil legal services may only be provided to a qualifying individual (i.e. an individual who meets the means and merits criteria under s.11) if the Director makes an exceptional case determination under s.10(2)(a), i.e. a determination that: (a) legal aid is necessary because a failure to provide civil legal services would breach the individual s Convention rights or EU law rights; and (b) it is appropriate to provide the services because of the risk of such a breach. (6) In order for a person excluded from legal aid by the residence test to qualify for exceptional funding under s.10 he or she would have to show that the legal issue in connection with which legal aid is sought is one which engages (i) Article 6(1), ECHR ( the determination of civil rights and obligations ); (ii) the procedural obligations inherent in another Convention right such as Article 8, ECHR; or (iii) enforceable EU law rights to the provision of legal services. It is also necessary to 6 See Regulation 39 of the Civil Legal Aid (Merits Criteria) Regulations 2013 (Auth 1/3). 7 MS Page No 6935
show that the denial of legal aid would result in a violation of those rights (s.10(3)(a)), or there is such a risk of a violation as to make it appropriate for legal aid to be granted (s.10(3)(b)). (7) Where legal aid is provided to an individual in any civil proceedings, they receive costs protection. Under s.26 LASPO, the general rule is that an adverse order for costs against a person granted civil legal aid must not exceed the amount that it is reasonable for him to pay, having regard to the financial resources of the parties to the proceedings and their conduct. (8) Eligible individuals whose income or capital is over a specified limit, but still within the eligibility thresholds, are required to pay a contribution from their income or capital towards the costs of the legal services provided to them. (9) Where an individual who has received civil legal services provided under Part 1 of LASPO recovers or preserves property in the proceedings, or in any compromise or settlement of any dispute in connection with the proceedings, or is the beneficiary of an inter partes costs order, those sums will be the subject of a statutory charge equivalent to the cost of the legal services provided under s.25, LASPO. 1.14 The listed priority areas are set out in Part 1 of Schedule 1 and the Explanatory Appendix (pp.ea1-ea51) 7 are (now) 49 in number. 8 As the DC explained: it is readily apparent that all of [the listed priority areas] are priority categories where the applicant s need or level of vulnerability is at or near the highest end of the scale (DC 9); Analysis of Part 1 of Schedule 1 shows that the statute seeks to confine civil legal services which the Lord Chancellor must secure to cases which are judged to be of the greatest need.... Part 1 of Schedule 1 seeks to identify those individuals and their circumstances having the greatest need for civil legal services... (DC 37). The CA agreed, observing that it is not merely unsurprising that Part 1 of Schedule 1 lists categories where the need for civil legal aid is pressing: it is, in effect, inevitable (CA 21). The CA referred to the pressing nature of each of the listed priority areas, giving as examples the protection... of children and vulnerable adults, or relating to human trafficking, homelessness, or gang-related violence... (CA 22). 7 Based on Analysis for the DC, with the 3 new priority areas added in 2015. 8 At the time of the DC s decision there were 46, to which have been added by primary legislation in 2015: P15A ( Female Genital Mutilation Protection Orders ); P32A ( Victims of slavery, servitude, or forced or compulsory labour ); P45A ( Extension of time for retention of travel documents ). 8 MS Page No 6936
1.15 The listed priority categories therefore concern such matters as: children and care (P1) (p.ea1), special educational needs (P2) (pp.ea2-ea3), abuse (P3, P9) (pp.ea3-ea5; EA16-EA17), removal (P10) (pp.ea17-ea18), protection (P13, P15-P17) (pp.ea19- EA23); vulnerable adults and abuse (P3, P9) (pp.ea3-ea5; EA16-EA17), people with disabilities (P7) (p.ea13), mental health and capacity (P5) (pp.ea6-ea9). They concern community care (P6) (pp.ea9-ea13), welfare benefits (P8) (pp.ea13-ea15) and council tax (P8A) (pp.ea15-ea16), domestic violence and family (P11-P14) (pp.ea18- EA20) and maintenance (P18) (pp.ea23-ea24). They concern liberty of the individual (P20-P22) (pp.ea29-ea34), immigration and cases in SIAC (P24) (pp.ea35-ea36), clinical negligence (P23) (p.ea35), housing and homelessness (P33-P35) (pp.ea42-45). LASPO Scope: Targeting Greatest Need in the Context of Access to Justice 1.16 The LC recognised the access to justice context and implications for the LASPO design of scope (see 1.8 and 1.10 above). The four factors chosen were unmistakeably access to justice factors ( 1.11 and 1.12 above). As the LC put it to the House of Lords Select Committee on the Constitution (Government Response to the Twenty First Report of Session 2011-2012 into the Legal Aid Sentencing and Punishment of Offenders Bill, December 2011 1.1, 1.2) (App 2F p.2784): 1.1 Legal aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer Fundamental rights to access to justice are protected by this Bill in relation to legal aid, through both the areas retained in scope in Schedule 1 to the Bill and through the exceptional funding provision. 1.17 So, it is very clear from the background to, as well as the nature and structure of, the statutory scheme of LASPO and from the listed priority areas that the objective was (a) to target the provision of civil legal aid at those situations of greatest need (b) in a context of securing access to justice. The objective of targeting greatest need was also clear from a number of relevant materials, many of which the DC recognised (and with which the CA did not disagree): 9 9 See also the references set out at 2.2 of PLP s Analysis document (App 2C pp.1645-1646). 9 MS Page No 6937
(1) [T]he Ministry of Justice s decision document of June 2011 10 [which] described the LASPO reforms as fundamental reform to ensure access to public funding in those cases which require it (DC 38). (2) [T]he statutory guidance to which the director must have regard (section 4(3)(b) [of LASPO, in which] the Lord Chancellor announced that he had refocused limited resources on the highest priority cases (DC 38). (3) In its decision document dated 20 September 2013 the Ministry of Justice described LASPO as targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds (DC 38). (4) [T]he witness statement of Dr Gibby 11 [which] charts the history of the legal aid policy from the consultation paper in November 2010 which describes the reform as aimed at ensuring that legal aid would be targeted, in the future, at those who needed it most (DC 39). (5) [The] Equality Statement, annexed to its Consultation Response Document dated 5 September 2013 [which stated]: Unless the legal aid scheme is targeted at the persons and cases where funding is most needed, it will not command public confidence or be credible [T]he reforms seek to promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it The primary responsibility of the MoJ in administering the legal aid system must be to provide fair and effective legal aid to those clients most in need (DC 39). (6) The Explanatory Notes to the draft Statutory Instrument which would have introduced the residence test re-iterated under policy background : Unless the legal aid scheme is targeted at the persons and cases where funding is most needed, it will not command public confidence or be credible (App 2E p.2535). 1.18 PLP analysed for the DC and CA the subject-matter and inclusion rationale for each of the listed priority areas. The DC rightly recognised that this context is vitally important to the present case and the Explanatory Appendix provides this 12. For 10 Reform of Legal Aid in England and Wales: the Government Response (2011) (Cm 8072) (App 2A pp.517-686). 11 Gibby, 10 (App 2E p.2421). 12 P46 ( Connected matters ) is not separately analysed there as it is parasitic on the rest. 10 MS Page No 6938
example, listed priority area P1 ( care, supervision and protection of children ) has a subject-matter (p.ea1) which involves actions by local authorities and courts: placing children in secure accommodation, care and supervision proceedings, emergency protection orders, and so on. As the LASPO Explanatory Notes put it (Auth 1/2 822): So, for example, legal aid will be available for parents where a local authority is seeking to take their child into care. As to the inclusion rationale, the MOJ had put this at the highest end of a spectrum of objective importance being a context where the individual faces intervention from the state in their family affairs, which may result in their children being removed from their care (June 2011 Decision Document 4.14) (App 2A p.234). The same goes for other listed priority areas: see the subject-matter and inclusion rationale for each remaining listed priority area (pp.ea2-51). Three new listed priority areas have been added to Part 1 of Schedule 1 since LASPO entered into force; all by primary legislation. 13 UK Connection by Subject-Matter 1.19 LASPO secures that civil legal services only be available in relation to the law of England and Wales (s.32(1)). In addition, the listed priority areas each involve a necessary UK connection by reference to the subject-matter: see the attached Explanatory Appendix. As the DC recognised (DC 76) any case [which] would fall within Schedule 1 Part 1 involves the individual s underlying legal rights whether seeking to vindicate rights under United Kingdom law or defend himself against a wrongful exercise of power by UK authorities. The eligibility premise, as the DC explained, is individuals with cases with legal merit (generally prescribed as being a better than 50% chance of success) seeking to vindicate their rights where the UK is the state to whose laws they are subject (DC 76 and 2). Again, PLP has analysed the position as regards the link to the UK for each of the listed priority areas. 1.20 This UK connection by subject-matter of the priority need is important. It means there is no forum shopping issue. That can be illustrated by contrasting the following example. Suppose legal aid were available for divorce proceedings in English courts. Suppose divorce proceedings were pursued in London by those living abroad, 13 Paragraph 45A (Extension of time for retention of travel documents) (pp.ea50-ea51) was added by the Counter-Terrorism and Security Act 2015, section 1(2)(a) (with effect from 13.02.2015); Paragraph 15A (Female Genital Mutilation Protection Orders) (pp.ea21-ea22) was added by the Serious Crime Act 2015 Sch.4 para.87(2) (with effect from 15.07.2015); and Paragraph 32A (Victims of slavery, servitude or forced or compulsory labour) (pp.ea38-ea40) was added by the Modern Slavery Act 2015 Pt 5 s.47(2) (with effect from 31.07.2015). 11 MS Page No 6939
opportunistically, to secure British legal aid. Now take a welfare benefit case. The premise for LASPO priority-area legal aid in a welfare benefit case (see listed priority area P8) (pp.ea13-ea15) is that the UK Parliament has already decided that the welfare benefit is an applicable legal right for the non-resident (otherwise, there could be no sufficient merits and legal aid would be refused for that reason). So, any benefits shopping issue (cf. Patmalniece v SSWP [2011] UKSC 34, [2011] 1 WLR 783 38, 46, 48) (Auth 7/59) has already been addressed by the law. So, it is all very well to say that Parliament may decide whether irregular migrant rough-sleepers are entitled to disability benefits, or whether destitute asylum seekers are entitled to accommodation (listed priority area P31) (pp.ea36-ea38). But in this case, the starting-point is that such a choice has been made and there is an applicable legal right. The issue is as to its vindication. As has been observed, It is no use to grant people rights if one does not grant them the possibility to enforce them. 14 1.21 To illustrate UK connection by subject matter, three examples will suffice. 1.22 First, take listed priority area P1 ( care, supervision and protection of children ) ( 1.18 above; pp.ea1-ea2). There, the necessary link to the UK (p.ea1) is that the UK Parliament has given UK local authorities statutory powers and duties applicable to families in respect of children present or resident in the area of a UK local authority or at risk of significant harm because of events occurring in that area; or a UK court may place a child in the UK abroad (in care or while in the care of the UK local authority), or may receive jurisdiction over care proceedings from another EU country s courts in the child s best interests and because of the particular connection between the child and the UK. 1.23 Secondly, listed priority area P2 (DC 15, 26) (pp.ea2-ea3) ( special educational needs ) was a priority area targeted at greatest need so as to prioritise funding on the most important education cases, given in particular the difficulty and importance of SEN cases and the vulnerability of those affected (DC 26). The necessary connection to the UK arises (p.ea2) because school attendance is compulsory for children in a UK local authority s area and the UK Parliament has imposed duties on UK local authorities to assess and make provision for the needs of children and young persons in their area, irrespective of immigration status (DC 26). As the LASPO Explanatory Notes put it (Auth 1/2 14 EJ Cohn (1943) 59 LQR 250, 253 (Auth 10/102). See also at 251: Where there is no legal protection, there is in effect no law. the rules of the law are as good as non-existent. 12 MS Page No 6940
824): These are typically challenges relating to a local education authority s assessment of a child s special educational needs. 1.24 Thirdly, in listed priority area P3 ( abuse of child or vulnerable adult ) (pp.ea3-ea4), the legal claim in question arises out of the abuse of a child or vulnerable adult ( whose ability to protect himself from abuse [was] significantly impaired through physical or mental disability or illness, through old age or otherwise (paragraph 3(5) of Part 1 to Schedule 1), including abuse in local authority care (Auth 1/2 827). Such claims were targeted as priority needs because of the seriousness of the alleged harm and the victim s likely vulnerability (App 2A p.597 23) (p.ea4). The link to the UK (p.ea4) is that such abuse claims are brought in English courts applying English law (LASPO s.32), so that for example abuse in local authority care means UK local authority care. The LASPO Explanatory Notes referred to claims by individuals who allege abuse in local authority care, and claims against a local authority for failure to take an individual into care (Auth 1/2 827). The same goes for the UK connection by subject matter for the other listed priority areas, and attention is invited to the link to the UK for those in the Explanatory Appendix (pp.ea5-ea51). The power to amend LASPO under s.9(2) 1.25 LASPO s.9(2) gives the LC power by order to add to, vary or omit the services described in Part 1 of Schedule 1 of LASPO, including by modifying the exclusions in Parts 2 and 3 of Schedule 1. The Government described this power in a Delegated Powers Memorandum for the House of Lords Delegated Powers and Regulatory Reform Committee, dated 21 June 2011, as a limited power to amend Schedule 1 to allow it be to kept up to date. As this is a power to amend primary legislation, it is drawn as narrowly as possible 15 adding: The power extends to modifying any Part of Schedule 1. The power will allow for services to be omitted from Schedule 1 if they are no longer needed, or it is no longer appropriate for them to be listed. For example, if particular court proceedings are moved to a tribunal, it may cease to be appropriate to provide funding for advocacy for those proceedings and so an amendment to Part 3 of Schedule 1 would be needed. The power can also be used to add new exceptions listed in Part 1. (App 2F p.2745 19). The Government also 15 Repeated in the LASPO Bill: Delegated Powers Memorandum prepared by the Ministry of Justice for the House of Lords Delegated Powers and Regulatory Reform Committee, 7 November 2011 (App 2F p.2756 18). 13 MS Page No 6941
described this as: a focussed power to omit services where, for example, funding may no longer be necessary and it will allow whole or parts of paragraphs to be omitted. 16 1.26 As the DC recognised, this power can be used lawfully and practically. Use made of the s.9(2) variation power illustrates this. The addition of paragraph 8A (Appeals relating to council tax reduction schemes) (pp.ea15-ea16) to Part 1 of Schedule 1 17 reflected a change in the need for legal services created by an amendment to the statutory scheme applicable to council tax benefits, in order to ensure that equivalent civil legal services are available in relation to onward appeals relating to council tax reductions schemes as is currently available in relation to council tax benefit 18 (DC 18). The extension of the definition of domestic violence in listed priority categories P12 ( victims of domestic violence and family matters ) (pp.ea18-ea19), P28 ( Immigration: victims of domestic violence and ILR ) (p.ea35) and P29 ( Immigration: victims of domestic violence and residence cards ) (p.ea36) of Schedule 1 19 was made to reflect the changes to the cross-government definition of domestic violence that will be implemented in March 2013 20 (DC 49). Changes made to the advocacy exceptions in Part 3 of Schedule 1 in 2014 21 were made to ensure that advocacy continued to be available in appropriate courts and proceedings in light of changes to the statutory framework for anti-social behaviour injunctions (listed priority area P36) (p.ea43), gang-related violence injunctions (listed priority area P38) (pp.ea44-ea45), and special educational needs (listed priority area P2) (pp.ea2-ea3). 22 Proposed Residence Test 1.27 LASPO entered into force on 1 April 2013. During its passage through Parliament no suggestion was made that secondary legislation under LASPO might be used to introduce a residence test for civil legal aid. However, on 9 April 2013, the MoJ published Transforming Legal Aid (Core pp.48-84), a consultation paper containing further proposals for reform of the legal aid system in England and Wales including a residence test (Core pp.75-78). 16 Government response to House of Lords Select Committee on the Constitution (Twenty First Report of Session 2011-2012: Legal Aid, Sentencing and Punishment of Offenders Bill), December 2011 (App 2F p.2787 5.1). 17 Order 2013/748, Article 3; Explanatory Memorandum, 7.1 (Auth 1/6). 18 Explanatory Memorandum to Order 2013/748, 7.6 (Auth 1/6). 19 Order 2013/748, Article 4 (Auth 1/6) 20 Explanatory Memorandum to Order 2013/748, 7.7 (Auth 1/6). 21 Order 2014/3305 (Auth 1/6). 22 Explanatory Memorandum to Order 2014/3305, 4.1-4.6. 14 MS Page No 6942
1.28 The residence test proposal met with widespread opposition, the majority object[ing] in principle to the test, arguing that it is unfair and unjust (App 2B p.1128, 2). The Civil Justice Council said that the proposed residence test raises particular concerns that go to the fundamentals of the justice system and the principle of accessibility of the courts to all (App 2B p.831). The Bar Council considered that it was wrong for constitutional reasons given the impact it would have on the rights of access to the courts, that it would offend core principles of the law: the right to non-discrimination, and equality before the law and that primary legislation would be required to bring the proposal about (App 2B pp.777-778). The Bar European Group and Administrative Law Bar Association observed that the residence test discriminates against non-british nationals and the claimed justifications and explanations do not withstand scrutiny. JUSTICE said the residence test will violate the common law guarantee of equality before the law and would ignore the carefully carved out limits to scope identified by Parliament during its lengthy and detailed debates on the scope of access to legal aid during the passage of LASPO (App 2B pp.870). The Immigration Law Practitioners Association explained that the residence test would undermine the rule of law and presents a problem about access to justice, about equality of arms, about holding the State to account (App 2B p.857). Sir Henry Brooke for his part noted the damaging injustices that will flow from these proposals (App 2B p.1029). In an open letter to the Attorney-General on 4 th June 2013, signed by 145 members of the Attorney General s Panel of Counsel, the signatories expressed particular concerns about the proposed residence test which in their view risked creating an underclass of persons within the UK for whom access to the courts is impossible.... Judicial review is important, not because [people who cannot meet a residence test] have more rights, but because they have fewer. To deny legal aid altogether to such persons, so that even the minimal rights provided to them by the law cannot be enforced, is in our view unconscionable. By the same token, to prevent people bringing legal proceedings who are subject to the actions of the UK acting abroad, often in ways which are alleged to be contrary to the most fundamental human rights, is in our view impossible to reconcile with the rule of law (App 2B p.938). 1.29 On 5 September 2013, the MoJ published its Decision Document in response to the consultation Transforming Legal Aid: Next Steps (Core pp.90-175), explaining its intention to implement most of its proposals including the residence test. The Decision Document made the case for reform based on linking public confidence and targeting those in greatest need. In a chapter entitled Introduction & The Case for Reform (Core p.96) it was stated that any legal aid scheme needs to be properly targeted at the cases and 15 MS Page No 6943
people most in need of assistance ( 1.2) and: Unless the legal aid scheme is targeted at the people and cases where funding is most needed, it will not command public confidence or be credible ( 1.5). In an annexed Equality Statement the MoJ further explained: The primary responsibility of MoJ in administering the legal aid system must be to provide fair and effective legal aid to those clients most in need (Annex F 6.13) (Core p.120). 1.30 Government said of the residence test that it believed that those who do not have a strong connection [to the UK] should not be prioritised for public funding in the same way as those who do have a strong connection. We must ensure that limited resource is targeted appropriately (Core p.104). A draft Order to bring in the proposed residence test was laid before Parliament on 31 March 2014, by which the test was introduced by way of a new exclusion in Part 2 of Schedule 1 LASPO (App 2E pp.2569-2577). In general, in order to qualify for civil legal aid in any of the listed priority areas to which the test applies, an individual would have to prove that they were (i) lawfully resident in the UK at the date of the application for civil legal aid and (ii) had been continuously lawfully resident for at least 12 months at some point in the past. Class-based exceptions would be made for (i) babies under 12 months (who would still have to show lawful residence) (ii) asylum seekers and refugees (iii) members of the armed forces and their immediate families. Certain listed priority areas were to be reprieved, in whole or in part by disapplying the new Part 2 exclusion. The DC annexed a Table identifying reprieved priority areas, updated 23 here: 23 This list is based on the draft 2014 Statutory Instrument plus three new listed priority areas (reprieve position unknown). The DC s list was based on the September 2013 Decision Document and February 2014 response to the JCHR. 16 MS Page No 6944
Residence Test: Listed Priority Areas and Reprieves Listed Priority Areas P1 Care, supervision and protection of children R P2 Special educational needs P3 Abuse of child or vulnerable adult R (child) P4 Working with children and vulnerable adults R= Reprieved from Residence Test P5 Mental health and mental capacity R (deprivation of liberty) P6 Community care R (Children Act 1989) P7 P8 P8A Facilities for disabled persons Appeals relating to welfare benefits Appeals relating to council tax deduction schemes P9 High Court inherent jurisdiction: children and vulnerable adults R (child/ deprivation of liberty) P10 Unlawful removal of children R P11 Family homes and domestic violence R P12 Victims of domestic violence and family matters R P13 Protection of children and family matters R P14 Mediation in family disputes P15 Children who are parties to family proceedings R P15A Female Genital Mutilation Protection Orders? P16 Forced marriage R P17 EU and international agreements concerning children R P18 EU and international agreements concerning maintenance R P19 Judicial review R (detention/siac/asylum refusal /certification) P20 Habeas corpus R P21 P22 Abuse of position or powers by public authority Breach of Convention rights by public authority P23 Clinical negligence and severely disabled infants R P24 Special Immigration Appeals Commission R P25 Immigration: detention R P26 Immigration: temporary admission R P27 Immigration: residence etc. restrictions R P28 Immigration: victims of domestic violence and ILR R P29 Immigration: victims of domestic violence and residence cards R P30 Immigration: right to enter and remain R P31 Immigration: accommodation for asylum-seekers P32 Victims of trafficking in human beings R P32A Victims of slavery, servitude or forced or compulsory labour? P33 P34 P35 P36 P37 P38 P39 P40 P41 P42 P43 Loss of home Homelessness Risk to health or safety in rented home Anti-social behaviour Protection from harassment Gang-related violence Sexual offences Proceeds of crime Inquests Environmental pollution Equality P44 Cross-border disputes R P45 Terrorism prevention and investigation measures etc. P45A Extension of time for retention of travel documents? 1.31 The LC has had to accept from the outset of this claim that the residence test would have an indirectly discriminatory effect, being easier for UK citizens to satisfy than other 17 MS Page No 6945
nationals 24 and falling within the ground of national origin as specified in Article 14 (DC 60) (LC s DC skeleton 29-30, App 2C p.1488); being more likely to be satisfied by a UK national than a national of another state (LC s CA skeleton 2, App 2C p.1606). Reference was subsequently made by the LC to Lord Sumption and Lord Reed s description in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820 (Auth 4/27) of discrimination on grounds of immigration status (LC s CA Supplemental Skeleton Argument 14, App 2C p.1723). 1.32 A focus on foreigners is unmistakable in this case. In the LC s own words (DC 60), I am treating people differently because [either] they are from this country and established in this country or they are not (App 2E p.2856). In the words of the Parliamentary Under- Secretary for Justice for the residence test it is important that they are our people - that they have some link to this country (App 2E p.2982). A Submission to Ministers described the residence test as being aimed at removing from the scope of civil legal aid failed asylum seekers, illegal immigrants, immigrants who have not been lawfully resident for 12 months and people (both foreigners and British nationals) who live outside the UK, Crown Dependencies or British Overseas Dependencies (App 2B p.1129 9). 1.33 The Decision Document was accompanied by the Equality Impact Statement at Annex F (Core pp.113-175). The MOJ concluded: To the extent there is a disproportionate impact (such as on non-british nationals), we believe that the residence test is a proportionate means of achieving the legitimate aims set out in paragraph 6.3 (Annex F, 11.2.13, Core p.150). But, revealingly, the aims described at 6.3 were to bear down on the cost of legal aid and promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it (Core p.119). 1.34 In contrast with the Impact Assessments prepared in conjunction with LASPO ( 1.9 above), there was a striking absence of analysis of the benefits and burdens of the residence test in the MOJ s documents. The MOJ did not quantify any costs savings and nowhere was it possible to see how the MOJ grappled with the implications in the listed priority areas for those who would fail the residence test. The position was analysed in detail below, by reference to material disclosed in the DC 25. 24 See too Transforming Legal Aid 5.3.1 (Core p.84), Equality Impact Assessment September 2013 Annex F, 11.2.9, 11.2.13 (Core pp.149-150), House of Lords and House of Commons, Joint Committee on Human Rights report, Seventh Report of Session 2013-14, 62 (App 2F p.2920) and Gibby 56 and 64 (App 2E pp 2434 and 2436). 25 See 9.3-9.5 of PLP s Analysis below (App 2C 1476-1478 and 1693-1695). 18 MS Page No 6946
Effect of the Residence Test 1.35 The DC rightly pinpointed the consequence of the residence test (DC 1-2) ( 1.2 above). It would mean ineligibility for civil legal aid, in the areas retained within the scope of Part 1 of Schedule 1 of LASPO as involving greatest need of public funding, despite individuals sufficient merits and insufficient means, on the grounds of the lack of a sufficiently close connection with the country to whose laws they are subject. 1.36 It is important to appreciate the implications, which the DC examined and illustrated by reference to the evidence (DC 15-17, 26-31). The implications are: (1) withholding legal aid from individuals (for example, as irregular or recent migrants) in these priority areas of targeted greatest need; (2) while preserving it for those with settled and regular UK residency status; (3) in circumstances where the underlying statutory schemes under which the relevant rights arise deliberately protect all equally. 1.37 Vulnerable groups such as those with special education needs (priority area 2) (pp.ea2-ea3) and vulnerable adults (priority areas 3 and 4) (pp.ea3-ea6) are not reprieved; nor are all cases concerning vulnerable children; nor all those with mental health and mental capacity issues. 1.38 It has been seen ( 1.23 above) that LASPO retained legal aid within scope by listed priority area P2 for special educational needs ( SEN ) cases (pp.ea2-ea3). That means advice about the duties of local authorities to assess the SEN of children who are at school in their area, preparation of SEN statements, and reviews of and appeals against SEN decisions. The duties imposed on local authorities to assess and meet special educational needs under Part IV of the Education Act 1996 and the Learning and Skills Act 2000 arise in respect of children who are in an authority s area because they are at school there, or live there. That duty applies irrespective of the immigration status of the parent or child. Parents of children of compulsory school age in England and Wales are moreover legally obliged to send their children to school, irrespective of their immigration status. But the parent of a child at a UK school who does not pass the test will be unable to secure legal advice to challenge action or inaction by the UK local authority in relation to the child s SEN. The child might even be a British citizen by birth here but in most SEN cases the child does not have standing to bring an appeal so if her parent or carer cannot meet the residence test, she 19 MS Page No 6947
will not receive any legal advice or assistance. As the DC recorded (DC 27): A concrete example given by Coram Children's Legal Centre in its response to the consultation paper is the case of L, who had recently arrived in the UK for the purposes of refugee family reunion with her husband, and who would be unable to access legal advice in relation to the failure of the local authority to assess the needs of her autistic eight-year-old son because she had only been in the UK for three months. 1.39 The DC described (DC 28-30) the consequences of the partial reprieve for cases falling within listed priority area P5 (mental health and mental capacity) (pp.ea6-ea9), limited to services provided in relation to the discharge of a patient liable to be detained or recalled under the Mental Health Act 1983 26 and to deprivations of liberty authorised under the Mental Capacity Act 2005. 27 This limited reprieve leaves vulnerable individuals who by definition may lack capacity to litigate unable to secure representation in cases involving the coercive powers of public authorities affecting their fundamental rights, such as the right to life, to physical safety, to marry and found a family, to consent to sexual relations, to choose where and with whom to live, and to refuse medical treatment, and in cases where their welfare would have continued to be seriously jeopardized in the absence of proceedings (DC 30, referring to the evidence of Nicola Mackintosh QC about the impact of the residence test on the incapacitated individuals whom she represents 28 ). 1.40 Those seeking advice in connection with local authorities obligations under Part III of the Children Act 1989 towards children in need and their families (listed priority area P6) (pp.ea9-ea13) are to be reprieved, but there is no such reprieve for judicial review proceedings (P19) (pp.ea24-ea29) to enforce those very duties. As PLP s evidence, from experienced solicitors and advice agencies, explained in detail, without the ability to threaten or bring judicial review proceedings, many vulnerable families would be wrongly denied support by local authorities anxious to protect their limited budgets. 29 Among the examples given in that evidence are children wrongly denied support from local authorities when they are facing homelessness, such as the case of K, a 16-yearold who had been sent to the UK at the age of 6 and overstayed her visa because her family did nothing to regularize her status. She was left in the care of an aunt and 26 Or paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984. 27 Article 3(4) of the draft Statutory Instrument, amending LASPO, Sch 1, Part 1, 5 (App 2E p.2529). 28 See her witness statement dated 9 December 2013 (App 2D pp.2407-2417) 29 See the further examples given from the evidence in relation to P6 (pp.ea11-ea12) and P19 (pp.ea25-ea27). 20 MS Page No 6948