The Basics of Judicial Review of Secondary Legislation: R (Public Law Project) v Lord Chancellor [2016] UKSC 39

There is nothing especially new about R (Public Law Project) v. Lord Chancellor [2016] UKSC 39, but it does contain a useful review of the basics of judicial review of secondary legislation.

The Lord Chancellor had sought to introduce by way of secondary legislation a residence test for eligibility for legal aid. Entitlement to legal aid is determined under the framework set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Of particular interest is s. 11, which is entitled “Qualifying for legal aid”. As Lord Neuberger explained:

Section 11(1) requires the Director to determine whether an individual qualifies for civil legal services by reference to (a) his financial resources (as defined in section 21 and “regulations under that section”), and (b) criteria set out in regulations. Section 11(2) provides that, in setting the criteria under section 11(1)(b), the Lord Chancellor (a) “must consider the circumstances in which it is appropriate to make civil legal services available”, and (b) “must, in particular, consider the extent to which the criteria ought to reflect the factors set out in subsection (3)”. The ten factors set out in section 11(3) include (a) the likely cost and likely benefit of providing the services, (b) the availability of resources, (e) the nature and the seriousness of the case, (f) the availability of alternative services, (g) the prospects of success, (h) the conduct of the individual concerned “in connection with services made available under this Part”, and (j) the public interest (at para. 7).

Subsequent to the enactment of the 2012 Act, the government made clear its intention to introduce a residence test so that only those who had been resident in the UK for 12 months prior to their application for civil legal aid would be eligible. The secondary legislation that introduced the residence test had some exceptions for especially vulnerable individuals but in general excluded non residents from eligibility for legal aid. It is worth noting that the Lord Chancellor relied on a “Henry VIII” clause contained in s. 9(2)(b) that allowed him to “vary or omit services” from the scope of the legislation.

Lord Neuberger first distinguished between primary and secondary legislation. Primary legislation, by virtue of the principle of parliamentary supremacy, is immune from challenge in the courts (“subject to arguable extreme exceptions, which I hope and expect will never have to be tested in practice”, at para. 20), on the basis that it is “subject to detailed scrutiny, discussion, and amendment in Parliament before being formally enacted…” (at para. 20). The rules are different for secondary legislation, regardless of whether it has to be affirmatively approved by Parliament or is subject to the negative resolution procedure whereby it takes effect a short time after being laid before Parliament unless it is voted down: “Although they can be said to have been approved by Parliament, draft statutory instruments, even those subject to the affirmative resolution procedure, are not subject to the same legislative scrutiny as bills; and, unlike bills, they cannot be amended by Parliament. Accordingly, it is well established that, unlike statutes, the lawfulness of statutory instruments (like other subordinate legislation) can be challenged in court” (at para. 22).

The role of the court when secondary legislation is challenged is to assess the vires of the impugned measure:

Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made. In declaring subordinate legislation to be invalid in such a case, the court is upholding the supremacy of Parliament over the Executive. That is because the court is preventing a member of the Executive from making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned. Accordingly, when, as in this case, it is contended that actual or intended subordinate legislation is ultra vires, it is necessary for a court to determine the scope of the statutorily conferred power to make that legislation (at para. 23).

Lord Neuberger also noted that “[w]hen a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament” (at para. 25) and warned that such powers will be interpreted restrictively “if there is any doubt about the scope of the power” (citing McKiernon v Secretary of State for Social Security, The Times, November 1989).

The problem here was that “[t]he exclusion of a specific group of people from the right to receive civil legal services in relation to an issue, on the ground of personal circumstances or characteristics (namely those not lawfully resident in the UK, Crown Dependencies or British Overseas Territories) which have nothing to do with the nature of the issue or services involved or the individual’s need, or ability to pay, for the services, is simply not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b)” (at para. 29).

This conclusion was supported by the ordinary language of the statute (because no service was being varied or omitted: para. 30), the surrounding context (which focuses on types of service rather than the individual circumstances of different claimants: paras. 31-35) and by the purpose of the statute (to channel legal aid “on the basis of the nature and importance of the issue, an individual’s need for financial support, the availability of other funding, and the availability of other forms of dispute resolution” rather than to exclude people based on personal characteristics unrelated to the process of litigation: para. 37 and see also para. 34).

The case was not as straightforward as Lord Neuberger’s analysis might suggest — the Court of Appeal had found for the Lord Chancellor based on the interplay between ss. 9 and 41 of the legislation (see para. 36) — but it nonetheless represents a useful overview of the basics of judicial review of secondary legislation.

This content has been updated on October 14, 2016 at 15:21.