The Lord Chancellor, Chris Grayling’s latest attempt to impose restrictions on eligibility for legal aid has run into a bit of a problem while on its way through Parliament. The High Court, in a rare three judge court, has found the proposed measure to be both unlawful and unjustifiably discriminatory. The draft regulation have since been withdrawn while the Minsitry of Justice considers an appeal to the Court of Appeal.

The proposal was that anyone who had not been lawfully in the UK for more than 12 months should not be able to get legal aid, no matter how valid their case was. It would have stopped people claiming for unlawful eviction, defending possession cases where the landlord had no right to throw them out, or seeking help with homeless applications. It would have applied even where people had been granted asylum, so were lawfully in the UK, but had been for less than 12 months. There was a generous exception for children under 12 months old.

The High Court found that this was unlawful because it was beyond the Lord Chancellor’s powers to introduce the regulations. The regulations were supposedly made by a power granted under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) to set the categories for which legal aid was available. However the High Court found that the purpose set out in LASPO was that:

"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.

The statutory provisions, read as a whole, demonstrate that that which the Lord Chancellor had publicly and repeatedly avowed, was to be achieved by a process whereby services were identified according to his assessment of where civil legal aid was most needed. No other criterion emerges from analysis of the statutory provisions. The power to add, vary or omit services under s.9 as supplemented by s.41 is to serve and promote the object of the statute."

So, the power to make regulations on availability of legal aid, could only be used to support the aims of LASPO, which the Lord Chancellor had repeatedly said were to provide legal aid to those most in need.

The proposed regulations were not about need. Indeed the Lord Chancellor admitted that it would stop people in need from getting legal aid, just on the basis of the time they had been present in the UK.

The proposed regulations therefore did not fit with the aim of LASPO as stated by the Lord Chancellor, so could not be lawfully made under the power to set what services legal aid would be provided for. They were, in the technical term ultra vires - beyond his lawful powers.

If that wasn’t bad enough, the High Court then went on to consider whether the proposed regulations were discriminatory under Article 14 of the European Convention on Human Rights. Obviously, they were:

'The Lord Chancellor has said as much to the Joint Committee on Human Rights: "I am treating people differently because they are from this country and established in this country or they are not” '

In fact, as the High Court judgment sharply notes, the Lord Chancellor went on saying this, even after this case had been heard, but before the Court had made its judgment. 

"Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent's shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :

"Most right-minded people think it's wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?

And yes, you've guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals" (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).”"

From a High Court judge, these are strong words.

So, the question was whether the discrimination had a lawful purpose and could be justified.

The High Court found that, having decided that legal aid should be provided to people in certain cases in LASPO, the Lord Chancellor could not argue that it was like welfare benefits. In benefits cases, the courts had previously found that a requirement of a ‘sufficient tie’ to the country could be set, but for legal aid:

"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. Moreover, it is difficult to see how the rationale that legal assistance should be confined to those with a closer connection than non-residents, can possibly be applied to those who are subject to the laws of a state and seek no more than its protection. On what basis is a greater tie or greater integration sought when the claimant merely wishes to avoid a discriminatory handicap?”

The Lord Chancellor had already decide that these kinds of cases were so important as to merit legal aid, so what could justify treating people who were lawfully in the country differently, just because they had not been here 12 months?

The Lord Chancellor tried to argue that it was to save money, but this didn’t get very far. It has already been established that ‘saving money’ is not a valid justification for discrimination.

Then the Lord Chancellor tried to argue that it was justified to ‘maintain public confidence’ in legal aid. This seems to be close to arguing that only cases that ‘the public’ actually like should get legal aid, and relying on ‘public confidence’ got a stinging rebuke from the High Court:

"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 such 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 judgement, 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. In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”

And so there was no justification for the discrimination in the proposed regulations and they were in breach of the requirement not to discriminate.

It may be open to the Government to bring the regulations back in the form of primary legislation, made with all the power of Parliament, rather than under the guise of a power given to the Lord Chancellor under another Act of Parliament. Or, though it seems unlikely, the Lord Chancellor may win an appeal to the Court of Appeal. But for the moment, the Lord Chancellor has been given a sharp reminder of the need to act lawfully in his decisions.