R (on the application of the Public Law Project) (Appellant) v Lord Chancellor (Respondent)

The appellant, Public Law Project, challenged the lawfulness of a draft order proposed by the Lord Chancellor, seeking to introduce a residence test for civil legal aid by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The core issue was whether the draft order was ultra vires, meaning outside the scope of the power granted to the Lord Chancellor under LASPO to introduce delegated legislation. The court concluded that the draft order was indeed ultra vires, as it sought to exclude a specific group of people from receiving civil legal services based on their residence, which was not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO. The court found that the natural meaning of the statutory language, as well as the wider statutory context, supported this conclusion. The court also rejected the argument that section 41 of LASPO could be invoked to permit the draft order, finding that it did not extend the substantive powers granted under section 9(2). The appeal was allowed on the ultra vires issue, and the discrimination issue was not addressed further.

The court's decision emphasised the principle of parliamentary supremacy and the role of the courts in upholding it by ensuring that subordinate legislation does not exceed the powers conferred by primary legislation. The court applied a restrictive approach to interpreting the statutory power, particularly when it involved an amendment to primary legislation, as in the case of the draft order. The decision underscored the importance of adhering to the specific criteria outlined in LASPO for determining eligibility for civil legal aid, rather than introducing new criteria such as residence, which were not contemplated by Parliament.