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||Neutral Citation Number:  EWCA Civ 1193
||Case No: C1/2014/2621
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Moses LJ, Collins and Jay JJ
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE KITCHIN
LORD JUSTICE CHRISTOPHER CLARKE
|| Public Law Project
||- and -
||The Lord Chancellor
||The Office of the Children's Commissioner
Mr Michael Fordham QC, Mr B Jaffey and Ms N Patel (instructed by The Public Law Project) for the Respondent
Mr James Eadie QC, Mr P Goodall QC and Mr D Lowe (instructed by The Government Legal Department) for the The Lord Chancellor
Mr Paul Bowen QC, Mr E Metcalfe and Ms C Meredith (instructed by Freshfields Bruckhaus Deringer LLP for the OCC) (by written submissions)
Hearing dates: 14 & 15 October 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Laws:
- This is the Lord Chancellor's appeal, with permission granted by the court below, against the decision of the Divisional Court (Moses LJ, Collins and Jay JJ:  1 WLR 251). On the application of the Public Law Project (PLP) the court granted a declaration that legislation which the Lord Chancellor proposed to introduce by statutory instrument would be unlawful.
- The case concerns the provision of civil legal aid, which is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Schedule 1 to LASPO sets out the categories of case (other than exceptional cases which are dealt with under s.10) in which civil legal aid may be provided. S.9 of LASPO, supplemented by s.41, empowers the Lord Chancellor to amend Schedule 1 by statutory instrument subject to the affirmative resolution procedure in both Houses of Parliament. In a paper published on 5 September 2013 (updated on 27 February 2014) entitled Transforming Legal Aid: Next Steps the Lord Chancellor stated his intention to introduce a residence test which would qualify the provision of civil legal aid in the ordinary course (that is, aside from exceptional cases arising under s.10). The measure would be effected by statutory instrument made under s.9. The Divisional Court held that if introduced the statutory instrument would be unlawful.
- At length, before these proceedings were heard in the Divisional Court, the Lord Chancellor produced a draft of the proposed statutory instrument: the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 (the Order). After the hearing but before judgment was delivered, the Order was laid before Parliament and approved by the House of Commons. After judgment in the Divisional Court the Lord Chancellor withdrew the draft before any debate in the House of Lords could take place.
- As I have indicated the Divisional Court declared the Order to be unlawful. It did so on two grounds: (1) that it was ultra vires the enabling statute, and (2) that it was unjustifiably discriminatory.
- It is convenient first to describe the material provisions of LASPO. S.1(1) read with s.1(2) obliges the Lord Chancellor to secure that "civil legal services" are made available under s.9 or 10, or paragraph 3 of Schedule 3. Ss.9 and 10 provide as follows:
"9(1) Civil legal services are to be available to an individual under this Part if –
(a) they are civil legal services described in Part 1 of Schedule 1, and the [Director of Legal Aid Casework] has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).
(2) The Lord Chancellor may by order –
(a) add services to Part 1 of Schedule 1, or
(b) vary or omit services described in that Part (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).
10(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2)… is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable [European Union] rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be a breach."
S.10 is unaffected by the Order.
- Schedule 1 Part 1 identifies a lengthy series of cases in which civil legal aid is to be available. They are summarised in an Annex to the Divisional Court's judgment, which I will not replicate. They include cases concerning the protection of children and vulnerable adults, mental health, disability, access to welfare benefits, domestic violence, forced marriage, judicial review, habeas corpus, abuse of public power, clinical negligence, immigration, human trafficking, homelessness and other matters. There are many exclusions from the scope of these categories: they are set out in Schedule 1 Parts 2 and 3. S.41 is an important provision in light of the argument of Mr Eadie QC for the Lord Chancellor. So far as relevant it provides as follows:
"(1) Orders, regulations and directions under this Part –
(a) may make different provision for different cases, circumstances or areas,
(b) may make provision generally or only for specified cases, circumstances or areas,
(c) may make provision having effect for a period specified or described in the order, regulations or direction.
(2) They may, in particular, make provision by reference to –
(a) services provided for the purposes of proceedings before a particular court, tribunal or other person,
(b) services provided for a particular class of individual, or
(c) services provided for individuals selected by reference to particular criteria or on a sampling basis…..
(4) Orders and regulations under this Part are to be made by statutory instrument…..
(6) A statutory instrument containing an order or regulations listed in subsection (7) [which includes orders under s.9]… may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament."
THE RESIDENCE TEST
- The means by which, under the Order, the residence test would be introduced into the statute would be by the insertion of a new paragraph (paragraph 19) into Part 2 of Schedule 1. This would create a further exclusion from the scope of Part 1, so that persons who do not fulfil the test would be ineligible for civil legal aid, subject always to s.10. Access to legal aid under s.10 would, as I have said, be unaffected by the Order. The provisions of the Order are described by the Divisional Court at paragraphs 21 to 24 of Moses LJ's judgment. The details of the proposed residence test are helpfully described in Mr Eadie's skeleton argument at paragraphs 8-9 as follows:
"8. To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days).
8. There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding ("ECF") regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it."
- Mr Eadie submits that the Divisional Court was wrong on both grounds upon which it held the Order to be unlawful. The first, as I have said, was that the Order would be ultra vires the statute.
THE ULTRA VIRES ISSUE
- The vires of the Order is stated to arise from ss.9(2)(b), 41(1)(a) and (b), (2)(a) and (b), and 3(b) and (c) of LASPO. At paragraph 20 of his judgment Moses LJ observed that "Mr Eadie agreed that the neatest fit was s.41(2)(b)".
The Judgment of the Divisional Court
- Paragraph 37 of Moses LJ's judgment sets out the court's core reasoning on the ultra vires issue:
"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. Those cases are identified by reference not only to the circumstances which an individual might face but also by reference to personal characteristics or attributes, for example, children or those suffering from mental ill health. But whether defined by reference to their status or by reference to their circumstances, Part 1 of Schedule 1 seeks to identify those individuals and their circumstances having the greatest need for civil legal services. Leaving aside questions of financial resources and merits, no example can be found within the primary legislation of a distinction drawn between those entitled to civil legal services and those who are not on grounds other than assessment of need. The purpose lying behind the identification of services in Part 1 of Schedule 1 is to identify need. Thus, Parliament has chosen to exercise a judgment according to the criteria of need and not on any other basis."
- The identification of need is then stated to be "the correct analysis of the objective lying behind the structure of the Act" (paragraph 38), and this is said to be confirmed by various extra-statutory materials referred to at paragraphs 38-39, to which our attention has also been drawn. There are very many references to need in the evolution of the residence test ultimately expressed in the Order. They include the Equality Statement at Annexe F to the Next Steps document (cited by Moses LJ at paragraph 39) in which the Lord Chancellor identified the primary objective of the reform package as being:
"to bear down on the cost of legal aid, ensuring that every aspect of expenditure is justified and that we are getting the best deal for the taxpayer. 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…the 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 Equality Statement concluded that "[t]he 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." Moses LJ continued:
"40 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. The secondary legislation provides an opportunity for the Lord Chancellor 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. The power cannot be construed in a way which widens the purposes of the Act or departs from or varies its primary objective…"
- Given the role of s.41 in Mr Eadie's case on the ultra vires issue, it is important to have in mind what Moses LJ had to say about it:
"49 Section 41 is, as the heading to that congeries of sections heralds, supplementary. Supplementary means what it says: it is added to the power in s.9 to fill in details or machinery for that which the Act, and in particular s.9(2), does not itself provide. It enables that which the Act empowers to be effective. But s.41 cannot by itself create a new and radically more extensive set of powers additional to those contained in s.9(2)… The essential power conferred is to add, vary or omit services as identified in Part 1 of Schedule 1. The introduction of the secondary legislation restricting the provision of those services to residents maintains and preserves such services as the Lord Chancellor considers demonstrate the greatest need, but merely deprives non-residents of the opportunity to take advantage of them. It is true that by way of supplementary provision services may be added, varied or omitted by reference to a particular class of individual, but that is only because the nature of the service may itself be identified by reference to a particular class of individual… [T]he identification of a particular class of person is merely designed to identify those with a need judged to have priority."
The Lord Chancellor's Case
- Mr Eadie's argument on the ultra vires issue is short and simple. The Department's documents, preceding the enactment of LASPO and the making of the Order respectively, emphasise the saving of public money just as clearly as the fulfilment of need for civil legal aid. More particularly the statutory language, principally that of LASPO ss.9(2)(b) and 41(2)(b) (but note also s.41(1)(a) and (2)(c)), is plainly broad enough to encompass a provision such as the residence test introduced to serve the former purpose. The restricted scope of s.9 contended for by PLP and accepted by the Divisional Court is driven by the fact that Part 1 of Schedule 1 sets out those classes of case considered to demonstrate the greatest need for civil legal aid. However s.9(2) could surely be deployed to delete an existing class, on cost grounds; but in that case the s.9(2) power is not limited so as only to allow for provision to be made in the Schedule for needy cases. Moreover the Divisional Court understated the role of s.41. Its description as "supplementary" does not betoken a subordinate function, providing only for adjectival mechanics; it is one of a number of sections (ss.31 – 43: their contents repay attention, but I will not set them out) containing substantive provisions which qualify different measures in the Act, but are specified once only as a matter of drafting convenience.
- In light of all these considerations Mr Eadie submits that s.9 read with s.41 plainly empowers the Lord Chancellor to make the Order and so introduce the residence test.
- Mr Fordham QC for PLP supported the reasoning of the Divisional Court. The anchor of his submissions was the proposition that the original, needs-based content of Part 1 of Schedule 1 defines the scope of the power given by s.9(2): the Lord Chancellor may only "recalibrate" the Schedule by reference to a criterion or criteria based on need. He may not delete potential recipients from the list for reasons not based on need. But Mr Fordham disavowed the proposition that cost was a "systematically irrelevant" factor in the exercise of the s.9(2) power: the Lord Chancellor was required to target those in greatest need, but that meant he could delete, on cost grounds, categories of recipients having the least need. In any event – and Mr Fordham described this as a "fallback" position – the Lord Chancellor could not give effect to cost factors by reference to the identity of the potential recipients rather than the identity, or nature, of the legal services under scrutiny. I doubt whether this was in truth a fallback position; it seemed to me simply to exemplify Mr Fordham's central submission, that any and every exercise of the s.9(2) power had to be based on considerations of need. There was a certain scattergun quality to some of these formulations of PLP's case, but in fairness I should acknowledge that they were largely articulated by Mr Fordham pressed in the course of argument by questions from the court.
- Mr Fordham accepted that s.41 is to be "put alongside" s.9; but this was not a concession of substance, as he was at pains to submit that if his essential case on s.9 was correct, s.41 could not expand the scope of the s.9(2) power: as Moses LJ put it below (paragraph 49), "s.41 cannot by itself create a new and radically more extensive set of powers additional to those contained in s.9(2)". Accordingly, any deployment of s.41(2)(b) to prescribe "services provided for a particular class of individual" may only identify the "class" by reference to the need of its members.
- Mr Fordham made extensive reference to the documents in the case, including (but not limited to) the Department's consultation paper of November 2010, its memorandum of 21 June 2011 to the House of Lords Delegated Powers and Regulatory Reform Committee, the Next Steps document and a witness statement of Dr Gibby, deputy director of legal aid and legal services policy. The Department's Memorandum of 21 June 2011 has this passage cited by Moses LJ at paragraph 41:
"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. It is appropriate for there to be a limited power to amend Schedule 1 to allow it to be kept up to date. As this is a power to amend primary legislation, it is drawn as narrowly as possible."
Parliamentary Privilege/Article 9 of the Bill of Rights
- Some of Mr Fordham's references, to be found more particularly in his skeleton argument, are to Parliamentary materials such as views expressed by the Joint Committee on Human Rights, the Joint Committee on Statutory Instruments, the Chair of the Public Accounts Committee, and at least one Ministerial statement to the House of Lords. Before the hearing in this court these references were brought to the attention of the authorities of both Houses of Parliament, and we have seen correspondence from the Office of Speaker's Counsel seeking assurances that there will be no violation of Parliamentary privilege or Article 9 of the Bill of Rights.
- In my judgment it is neither necessary nor desirable, in the circumstances of this appeal, for the court to enter into a satellite question concerning the admissibility of Parliamentary material. To the extent that Mr Fordham seeks to rely on statements in either House (or in Committee) to establish the central importance attached to need in the evolution of policy relating to civil legal aid, that is amply demonstrated by the Department's own published documents; and Mr Eadie has, as I understood him, not sought to contradict it. The opinions of Members of either House as to the import or merits of provisions contained in LASPO (or the Order) are, with great respect, not relevant to the fulfilment of this court's duty to construe the statute. I note in that connection the observation of Green J in Gibraltar Betting & Gaming Association v Secretary of State for Culture, Media and Sport  1 CMLR 28 (drawn to our attention in a helpful note submitted by Mr Fordham and his juniors after the hearing) that "[t]he judge cannot receive evidence of what is said in Parliament for the purpose of agreeing or disagreeing with it". I am sure that is right. I should add that it is not suggested that this is a case in which recourse might be had, pursuant to Pepper v Hart  AC 593, to statements promoting the Bill in order to resolve an ambiguity.
- As I have indicated, the Department's documentation underlines and emphasises the focus on need which informs the material provisions of LASPO. But Mr Eadie is likewise able to point to references to the saving of expense. Then in IS v The Lord Chancellor  EWHC Admin 1965 Collins J said this at paragraph 24:
"LASPO was enacted in order to limit the grant of legal aid with a view to making savings in the cost to public funds."
And paragraph 6 of the Explanatory Notes to LASPO identifies the purpose of this part of the statute as the fulfilment of the government's aim "to carry out a fundamental review of legal aid to make it work more efficiently". The reality is that need and cost are not strange bedfellows. It must be 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. Thus 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. But that necessity does not tell us that the only criterion by which the Lord Chancellor may limit or restrict the provision of civil legal aid is the perceived need of its potential recipients.
- As I have said Mr Fordham accepts that the Lord Chancellor could delete, on cost grounds, classes of recipients having the least need. His case therefore envisages a scenario in which it is possible and realistic to list categories of legal aid cases in descending order of need, or at least to conclude that one or more of the categories presently contained in Schedule 1 involve less need than others; that must be so, else the deletion of less needy recipients could never take place. Now, Part 1 of Schedule 1 as it stands does not prioritise any of the categories it contains over any other. Part 2 excludes a series of other categories, largely money claims. The respective contents of Parts 1 and 2 no doubt reflect a judgment by the legislature that the former, overall, represent needier cases than the latter. But for the subordinate legislator to draw distinctions on grounds of need between the various legal services listed in Part 1 for the protection (for example) of children and vulnerable adults, or relating to human trafficking, homelessness, or gang-related violence, would constitute an exercise whose rational and humane basis might well be hard to find. The pressing nature of all the "listed priority areas" in Part 1 (to use the language of Mr Fordham's skeleton argument) is witness to the fact. No doubt there is some limited scope for change to Part 1 on needs grounds; the Department's Memorandum of 21 June 2011 cited by Moses LJ at paragraph 41 envisages as much. But I think Mr Eadie was right to submit (skeleton argument paragraph 25) that "[t]o read the statutory purpose narrowly, as the Divisional Court did, places severe constraints on the government's ability to control the legal aid budget by means of rational decisions as to which cases can legitimately be accorded the highest priority, whether on the grounds of need or otherwise".
- These difficulties of course do not ipso facto demonstrate that Mr Eadie's case on ultra vires is correct, though I think they lend it substantial support. Overall, in my judgment, the terms of the statute do not indicate that its purpose is to be read as "narrowly" as Mr Fordham would have it. In particular, the unsurprising (I think inevitable) fact that the contents of Part 1 of Schedule 1 are needs-based does not suggest, far less require, that the expression in s.41(2)(b) to "a particular class of individual" is on its true construction limited by reference to the needs of the class's members. To my mind it is 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. The residence test is well within the scope of such a strategy, and likewise, as it seems to me, within the scope of changes permitted to the Lord Chancellor by s.9(2)(b) read (in particular) with s.41(2)(b).
The Office of the Children's Commissioner
- In rejecting Mr Fordham's case on the ultra vires issue I should acknowledge the contribution to the argument made by the Office of the Children's Commissioner, who intervened in the appeal (in writing only) with leave granted by myself on 11 December 2014. The Commissioner advanced three principal submissions, of which the first two concerned the ultra vires issue. These were (a) that "a child has a right to legal aid in any proceedings in which his or her best interests are determined" (Commissioner's Submissions, paragraphs 12 ff); and (b) that LASPO s.9(2) is to be construed narrowly. In essence the latter submission repeated Mr Fordham's argument, and I will say no more about it.
- Point (a) was largely built on the United Nations Convention on the Rights of the Child (UNCRC). The only express requirement in the UNCRC to provide legal aid is contained in Article 37(d), addressing cases where there is a loss of liberty. LASPO provides for legal aid in those circumstances, and the residence test does not apply. Article 12 provides that a child should have a right to be heard, but demands no extension of legal aid. The general provision contained in Article 3(1) that a child's best interests be treated as a primary consideration in judicial decisions is well known but carries the matter no further. In my judgment the UNCRC does not support the existence of a right to legal aid in any proceedings whatever in which a child's best interests are to be determined.
- I should make it clear that the Commissioner acknowledges (Submissions, paragraph16) that the UNCRC is an unincorporated treaty, and as such does not confer enforceable rights in domestic law: her case is that its power has effect through the correct interpretation of the ECHR. In fact no appeal to the ECHR could assist the Commissioner: any requirement of legal aid imposed by the ECHR or the law of the European Union is met by LASPO s.10. The proper working of s.10 was considered by this court in Gudanaviciene  1 WLR 2247; with respect I need not cite the judgment.
- As regards the legal status of the UNCRC I should note that the Commissioner reserves the right (footnote 20) to submit elsewhere that the UNCRC, as an international human rights convention, should be held to be binding in domestic law without the need for legislative incorporation; and she refers to a dictum of Lord Kerr in R (SG) v SSWP  1 WLR 1449, paragraph 254. As we have heard no argument on the question I will only venture to say, with great respect, that I think it of the first importance to give full weight to the constitutional principle that the Executive, which enters into treaty obligations, is not (save under powers delegated by Parliament, and subject to certain irrelevant exceptions) a source of law in the United Kingdom. The rule of law's strength in this jurisdiction depends at least in part on the fact that our law flows only from two principal foundations: Parliament and the judges. I do not think that the benign nature of this or that international treaty, including the UNCRC, should begin to license the government to make law.
- The Commissioner also submits that a child's right to legal aid may be derived from the common law. But this would involve, as Mr Eadie put it (supplementary skeleton paragraph 30), "a radical discovery of a new common law right to be provided with legal aid". There is no such right to be discovered.
- There was some reference in the course of argument to two further points. Mr Fordham had something to say about the principle of legality; Mr Eadie about the fact that the Order was subject to the affirmative resolution procedure in Parliament (see s.41(6)). I am unable to see how the latter circumstance casts any light on the correct construction of s.9. As for the "principle of legality", this vague but popular expression is generally taken to denote the requirement that fundamental rights may only be curtailed or abrogated by clear statutory words. It does not assist Mr Fordham here. There is no such curtailment, actual or threatened. LASPO s.10 addresses cases where the ECHR demands the grant of legal aid.
THE DISCRIMINATION ISSUE
- I have said that the saving of public funds, and to that end the residence test, lie properly within the objective of LASPO ss.9(2)(b) and 41(2)(b) to enhance the efficiency of civil legal aid. The Lord Chancellor considers that public confidence in the legal aid system would be strengthened by the residence test. In addressing the argument on the discrimination issue, Moses LJ made it plain that he thought little of such a point of view. At paragraph 84 of his judgment he said:
"In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice."
I do not, with respect, share this opinion. I think that reasonable people may disagree about the merits of the residence test, and the Lord Chancellor's defence of it. This brings me to the discrimination issue.
- It is common ground that the residence test is discriminatory within the meaning of ECHR Article 14 read with Article 6. I need not set out these provisions; the only question on this part of the case is whether the residence test, being discriminatory, can be justified as a proportionate measure for the achievement of a legitimate aim. The relevant aim is the saving of public expenditure; that is plainly legitimate. But it is necessary to decide by what criterion or criteria the issue of justification should be determined. "Manifestly Without Reasonable Foundation"
- In my view the question whether State funding of legal expenses in civil matters should (subject to exceptions) be limited to recipients resident in the United Kingdom is essentially a political question, concerned as it is with the strategic distribution of scarce public resources; and one upon which, as I have said, reasonable people may entertain contrary opinions. In those circumstances one would expect that the law, in setting the criterion by which the discrimination involved may be justified, will allow a very considerable margin of discretion to the elected arms of government. The decision of such questions is their particular responsibility, and it is an important muscle in our democracy that that should be so.
- This constitutional priority is reflected in an observation of Thomas LJ as he then was, giving the judgment of the Divisional Court in Patel v The Lord Chancellor  EWHC Admin 2220, another case which concerned legal aid funding (paragraph 38):
"Judicial restraint in such cases is underpinned by the separation of powers which means that the Lord Chancellor is entitled to a built-in latitude (or margin of discretion) in this decision making, given the significant expenditure of public funding at stake and the need to balance the wider public interest."
See also Howard League for Penal Reform v The Lord Chancellor  EWHC Admin 709 at paragraph 52. More generally, the same imperative may be found in the well established "manifestly without reasonable foundation" test which is applied in the context of social security benefits. It was deployed by the Strasbourg court in Stec v UK (Applications Nos. 65731/01 and 65900/01), which concerned the administration of an earnings-related State benefit:
"Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social and economic grounds, and the Court will generally respect the legislature's policy choice unless it is manifestly without reasonable foundation." (paragraph 52)
- The reasoning in Stec is of course concerned with the distance between the international human rights court and the public powers in individual States, and therefore rests on the distinct Strasbourg doctrine of the margin of appreciation, or the scope of discretion, which the former will accord to the latter. But the "manifestly without reasonable foundation" test has been applied to the relationship in this jurisdiction between the domestic reviewing court and the political decision-maker. The position is crisply summarised by Moses LJ at paragraph 66 of his judgment in the present case:
"There is by now a substantial body of jurisprudence to show that discriminatory selection in relation to the distribution of benefits, such as housing benefit capped in relation to large lone parent families (R (JS) v SSWP)  PTSR 23,  EWCA Civ 156) or the provision of health care to non- residents (R (A) v Secretary of State for Health  1 WLR 279), was a matter for the judgment of Parliament and the Government (see also Baroness Hale's adoption of the Stec approach in Humphreys v Revenue and Customs Commissioners  UKSC 18,  1 WLR 1545)."
Baroness Hale in the Humphreys case made it plain that the "manifestly without reasonable foundation" test was now anchored in our domestic law. At paragraph 18 she stated:
"The same test was applied by Lord Neuberger (with whom Lord Hope, Lord Walker and Lord Rodger agreed) in R (RJM) v Secretary of State for Work and Pensions  UKHL 63,  1 AC 311, which concerned the denial of income support disability premium to rough sleepers. Having quoted para 52 of Stec he observed, at para 56, that this was 'an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express, or primary grounds'. He went on to say that it was not possible to characterise the views taken by the executive as 'unreasonable'…"
Cases under the Law's Special Protection
- It is clear, however, that the "manifestly without reasonable foundation" test does not cover the whole field of government decisions challenged on grounds of discrimination (or other public law grounds impugning the decision's merits: I am not concerned here with claims of illegality or procedural impropriety, for which see CCSU v Minister for the Civil Service  1 AC 374, per Lord Diplock at 410F, 411A). The standard of review varies with the context of the case. At paragraph 16 in Humphreys Baroness Hale cited this passage from Stec (paragraph 52):
"The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy."
- It is plain, then, that there are certain classes of case where our law will apply a more intrusive judgment to the justification of discrimination. In Carson v Secretary of State  1 AC 173 Lord Hoffmann said this:
"15 Whether cases are sufficiently different is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the 14th Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification: Massachusetts Board of Retirement v Murgia (1976) 438 US 285.
16 There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government."
- Thus certain grounds for discrimination – race, sex and so forth – will be especially hard to justify, because they offend the Kantian principle that every individual is to be treated as an end and not a means (pace Lord Hoffmann, I think an appeal in this context to an entitlement to "equal respect" is apt to be unhelpful and misleading). The courts' approach to questions of justification in discrimination cases of that kind will be correspondingly muscular. But in my judgment the classes of case where the law will control discrimination with particular vigour are not exclusively defined by reference to the grounds of the discrimination in question. Some are defined by reference to the context in which it arises. These are areas under the special protection of the law, most notably the doing of justice and the presumption of individual liberty. If these constitutional fundamentals are undercut by the elected powers, the courts will defend their legal pre-eminence without inhibition: no less if the threat is by way of a discriminatory measure than if it is by action across the whole field.
- In light of all these considerations, the "manifestly without reasonable foundation" test for justification constitutes in my judgment the law's default position in any discrimination case where the subject-matter is one of broad, or strategic, economic and/or social policy. It will however be disapplied, and a more vigorous, intrusive approach adopted, where either the grounds of discrimination or the context of the case call for the law's special protection: the former because of the law's attribution of value to every individual, the latter because of the law's special responsibility in certain areas such as access to justice. And it is no coincidence that these two categories are specially protected. The common law's care for the value of the individual dictates both. The principle that every individual is to be treated as an end and not a means demands, if it is to mean anything in a society lively with dispute and confrontation (as most societies are), a justice system which presumes in favour of liberty and insists on high standards of fairness applicable in every case.
- In my judgment it is clear that the respondent PLP cannot look to the courts to exercise an intrusive judgment by reference to the grounds of discrimination which are inherent in the Order under challenge. Place of residence – the ground in question
– is not a characteristic, such as sex or race, which is specially protected by the law on the footing I have described. Is there a more promising line of argument based not on the grounds of discrimination but on the context of the case? Mr Fordham submits there is: the context is access to justice.
- Tigere v Secretary of State  1 WLR 3820 involved a discrimination challenge to a test of lawful residence (for a three year period), and settlement, sought to be imposed as pre-conditions for the grant of a student loan. The claim was brought by a young person who had been "settled here for many years in the factual sense but [was] not so settled in the legal sense" (per Baroness Hale at paragraph 1). She and those in like case were excluded from the scheme. Lady Hale, with whom Lord Kerr agreed, held that the requirement of lawful settlement was not justified. At paragraph 27 she stated that in Strasbourg "a wide margin of appreciation is usually allowed to the state under the Convention when it comes to general measures of political, economic or social strategy, and the court generally respects the legislature's policy choice unless it is 'manifestly without reasonable foundation'". However (paragraph 28) "education is rather different". After citing Ponomaryov v Bulgaria (2014) 59 EHRR 20, Lady Hale continued at paragraph 32: "[a]s the appellant points out, education (unlike other social welfare benefits) is given special protection by A2P1 [sc. Article 2 of Protocol 1 to the ECHR] and is a right constitutive of a democratic society".
- Lord Sumption and Lord Reed disagreed with Lady Hale and Lord Kerr, and would have dismissed the appeal. Lord Hughes agreed with Lady Hale in the result but for somewhat different reasons.
- Tigere is, I think, of very limited assistance to Mr Fordham, not least because Lady Hale and Lord Kerr were, in common with their other Lordships, satisfied that the residence test in that case (as opposed to the requirement of lawful settlement) was satisfied. It is of interest as an illustration of the fact that the edge between those categories of case which are under the law's special protection and those which are not is not absolutely fixed. As it happens I think, with great deference, that the proposition that "education is rather different" is problematic; but we are not required to go into that in this appeal.
- Mr Fordham's case is that this case falls squarely within the protected space: it is about access to justice. He drew an imaginative, but I think in the end jesuitical, distinction between cases where State funding is provided to meet a need – health care is the obvious example – which arises independently of any decision made by the State, and cases where State funds are to be provided in order to make good a right which the State has itself conferred, such as a sound claim in law. But the need for services which have to be paid for arises in both cases. There is no moral or logical force in attributing a special status (when it comes to a court challenge) to the latter class of case merely on the ground that the source of the need is the law, rather than God or nature.
- Mr Fordham's better point is the simple one that the context of the case is access to justice. His difficulty, in my judgment, is that there is a profound difference between on the one hand the State's duty to ensure fair and impartial procedures and to avoid undue legal obstacles to access to the courts, and on the other a putative duty to fund legal representation. In Witham v The Lord Chancellor  QB 575 in the Divisional Court, in a judgment with which Rose LJ agreed, I said at 586:
"26. Mr Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the State which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers."
If I may say so that still seems to me to be correct and I am not aware that it has been contradicted.
Conclusion on the Discrimination Issue
- For all these reasons, I would hold that the test for justification in this discrimination case is whether the residence test is "manifestly without reasonable foundation". Plainly, that test is not met. I should add that I do not think the Order's subjection to the affirmative resolution procedure in Parliament could itself drive the case very far. The overriding factors which determine the intensity of judicial review are, as I have explained, the grounds of discrimination and the context of the case.
- I would allow the Lord Chancellor's appeal.
Lord Justice Kitchin:
- I agree.
Lord Justice Christopher Clarke:
- I also agree.
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