R v Lord Chancellor

Facts

The 2012 Act set out the civil legal services for which legal aid was available. Section 9 gave the Lord Chancellor power by order to amend Part 1 of Schedule 1, which described those services. In 2014 the Lord Chancellor made an order which would restrict civil legal aid to those who had been lawfully resident in the United Kingdom for at least twelve months, with some exceptions.

Issue

Whether the power to vary the services in Part 1 of Schedule 1 allowed the Lord Chancellor to introduce a residence requirement that depended on the personal characteristics of the applicant and not on the nature of the legal service, and whether the order was unlawful on other grounds.

Held

The appeal of the claimant was allowed and the order was held to be ultra vires the Lord Chancellor.

Ratio

• A power conferred by statute must be exercised consistently with the purposes of the statute and within the scope of the words used; a power to add, vary or omit services is a power concerned with the description of the services, not a power to impose a condition that depends on the status of the applicant.
• Because the 2012 Act made provision for legal aid by reference to the type of legal service and the means and merits of the applicant, the introduction of a residence test would cut across the legislative scheme and could not be said to be authorised by the general power to amend.
• Courts approach a delegated power to alter the effect of an Act with particular care, and the more far-reaching the change, the clearer the authorisation must be.

The judgments

Key reasoning

• The court read the power in its statutory context, finding that Parliament had fixed the criteria for legal aid in the Act and that a residence test was not among them.
• The importance of access to the courts and the rule of law meant that the court would not read general words as permitting the executive to remove legal aid from a group of people by a criterion that Parliament had not chosen.
• The court reached its decision on the ultra vires ground and did not need to decide the further argument that the test was unlawfully discriminatory.

Where it fits in the module

On delegated legislation, the case shows the courts policing the boundaries of statutory powers conferred on ministers. It raises the question of how far the judiciary may rely on constitutional principle such as the rule of law and access to justice to read down the scope of a power, and it connects to the larger debate over executive law making.

Criticisms

• The court relied in part on the purpose of the Act and on constitutional principle to restrict the wording of an apparently wide power, which may be said to give judges a broad discretion to decide what Parliament intended.
• Resolving the case on the narrow ground of the scope of the power leaves open whether a similar change could be made lawfully by primary legislation, and so does not address the substantive policy question of fairness to non-residents.
• The distinction between varying services and imposing conditions on applicants is formal, and the decision may be criticised for relying on a narrow reading of a power that the Act had expressly given in wide terms.