Legal aid axemanship:

Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was brutal axemanship by uncaring Ministers on the essential principle of access to justice.  Whole swathes of cases were removed from eligibility for legal aid and thousands of "litigants-in-person" have struggled to present their cases before the courts and tribunals.  (See, for example, Bar Council - LASPO One Year On: Final Report).  As far as I can see, there is still almost no political will to reverse these cuts or, for that matter, to even commission a thorough review of their impact.  The legislation contains provision for "exceptional funding and it appears that the number of applications being granted has risen gradually since 2013 although only around 45% of applications seem to be succeeding at the moment - Ministry of Justice Statistics July 2015-December 2015.

A residence test?

Against this background of dire legal aid provision, the government attempted to introduce a RESIDENCE test for legal aid eligibility.  Legal aid would not have been granted to those who were unable to show lawful residence in the UK (or Crown Dependencies or British Overseas) for at least 12 months prior to bringing a claim.  Some very limited exceptions were to be permitted.  The detail was in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014  and Draft Explanatory Memorandum.  An entire class of individuals were to be removed from legal aid eligibility regardless of the seriousness or complexity of their claim.

This governmental plan did not escape the vigilance of bodes such as JUSTICE which attempted to raise awareness of the lack of fairness inherent in the scheme - 2014 REPORT by JUSTICE.  There was also concern within  Parliament.  Justice considered the changes to be "unnecessary and ill-considered" as well as being incompatible with equal protection before the law.  Equality before the law is inherent in the common law and the changes would almost certainly have been in breach of European Union Law on Freedom of Movement (Treaty on European Union Art 24) as well as Article 14 of the European Convention on Human Rights.  

In the courts:

The High Court held that introduction of the residence test was ultra vires and unjustifiably discriminatory. The Court of Appeal overturned that decision - see [2015] EWCA Civ 1193.  The matter then went to the Supreme Court which has ruled that the Residence Test was ultra vires (beyond the powers of) the Act (LASPO).   In other words, the Act did not permit Ministers to introduce a residence test by using secondary legislation.  The principle that those given powers must act within them is a basic principle of our common law.  The court's judgment is to be handed down later.  At the end of the hearing on 18th April the Supreme Court announced that it was allowing the appeal on the ultra vires ground. The Court indicated that it did not consider it necessary to hear argument on whether the Order was unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

Acts of Parliament frequently permit Ministers to make secondary legislation.  To a point this is necessary since it avoids the Act having to deal with all the minutiae connected with implementation of the Act.  LASPO 2012 section 9(2) states:  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).

The resurgence of Henry VIII:

Here then is an example of "Henry VIII legislation" enabling Ministers to alter the enabling Act itself.  The Lord Chancellor could amend the Schedule to the Act providing for civil legal aid.  However, the Supreme Court has held that the power granted to the Lord Chancellor did NOT go so far as to allow him to remove a whole class of people from legal aid when the reason for their removal was essentially who they were.

The decision does not prevent Ministers trying to get their way eventually but they will now have to do so by way of Primary Legislation.

The extensive use of Henry VIII powers has not escaped criticism.  The phrase is of course based on the dictatorial Tudor Monarch - Henry VIII (1491-1547) who ruled from 1509 until his death .  Lord Judge, a former Lord Chief Justice spoke about them at King's College London on 12th April 2016 - "Ceding power to the executive; the Resurrection of Henry VIII."   See also Professor Mark Elliott - Public Law for Everyone 15th April - Henry VIII powers: a follow-up post

Supreme Court Judgment:

Link to be added later.

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