Courts rule draft legal aid regulation a nullity

It is accepted that the courts have power to declare a statutory instrument invalid where it has been made outside the powers (ultra vires) provided in the Act of Parliament. In practice this happens rarely – not least because officials usually ensure that they do not act beyond their powers.

However, in July 2014, in The Queen on the Application of the Public Law Project -v- The Secretary of State for Justice and The Office of the Children’s Commissioner [2014] EWHC 2365 (Admin), the Administrative Court did find that a regulation had been made ultra vires.

The issue arose from the desire of the present Government to cut public expenditure on legal aid. Arguing that what money was available should go to those most in need, the Government proposed that there should be a ‘residence’ test for civil legal aid. This would mean that, with some exceptions, 12 months continuous residence in the UK would be required before someone could be eligible for public legal aid funding. The rule was set out in a Draft Regulation, that was due to come into force in August 2014.

The problem arose because the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in Part 1 of Schedule 1, list types of case that remained potentially covered by the civil legal aid scheme. Funding remains in place because the listed cases are regarded as having the greatest need for legal aid. In short, the Act limited entitlement according to criteria based on need and not on any other basis.

It was argued that, by seeking to prevent those coming new to the UK from getting legal aid, their needs might be just as urgent as those affecting people already here, but they would be denied legal aid because they did not meet the residence test. It was argued that the attempt to introduce this test by regulation was outside the scope of the Act. It was also argued that the effect of the regulation would, if upheld, be to discriminate unlawfully against those recently come from abroad. The Division Court agreed with these arguments and declared the Draft Regulation of no effect.

The Government announced that it would appeal the decision, but in the meantime, they would not go ahead with implementation of the draft Regulation.

The text of the decision is at http://www.judiciary.gov.uk/judgments/the-queen-on-the-application-of-the-public-law-project-v-the-secretary-of-state-for-justice-and-the-office-of-the-childrens-commissioner/

The Government response is at https://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/update-on-civil-legal-aid-residence-test