R Public Law Project v Lord Chancellor 2016 UKSC 39

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Trinity Term 
[2016] UKSC 39 
On appeal from: [2015] EWCA Civ 1193 
 
 
 
 
JUDGMENT 
 
 
R (on the application of The Public Law Project) 
(Appellant) v Lord Chancellor (Respondent) 
 
 
before  
 
Lord Neuberger, President 
Lady Hale, Deputy President 
Lord Mance 
Lord Reed 
Lord Carnwath 
Lord Hughes 
Lord Toulson 
 
 
 
JUDGMENT GIVEN ON 
 
 
13 July 2016 
 
 
Heard on 18 April 2016 

 
 
 
Appellant  Respondent 
Michael Fordham QC  James Eadie QC 
Ben Jaffey  Patrick Goodall QC 
Naina Patel  Simon Pritchard 
Alison Pickup  David Lowe 
(Instructed by Bindmans 
LLP) 
 (Instructed by The 
Government Legal 
Department) 
 
 
  Intervener (Office of the 
Children’s Commissioner) 
  Written submissions only 
  Paul Bowen QC 
  Eric Metcalfe 
  Catherine Meredith 
  (Instructed by Freshfields 
Bruckhaus Deringer LLP) 
 
 
  Intervener (The Law 
Society) 
  Written submissions only 
  Dinah Rose QC 
  Iain Steele 
  (Instructed by The Law 
Society) 
 
 

 
 
 
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LORD NEUBERGER: (with whom Lady Hale, Lord Mance, Lord Reed, 
Lord Carnwath, Lord Hughes and Lord Toulson agree) 
1. This appeal concerns the lawfulness of a proposal by the Lord Chancellor 
(then The Rt Hon Christopher Grayling MP) in September 2013 to introduce a 
residence test for civil legal aid by amending Schedule 1 to the Legal Aid, 
Sentencing and Punishment of Off enders Act 2012 (“LASPO”), by means of 
delegated legislation, in the form of a statutory instrument, which I will refer to as 
“the draft order”. 
Part 1 of LASPO 
2. In November 2010, the Ministry of Justice published a consultation paper 
entitled Proposals for the Reform of Legal Aid in England and Wales. Following the 
subsequent public consultation exercise, the Ministry published a paper entitled 
Reform of Legal Aid in England and Wales: the Government Response in June 2011. 
The proposals in this June 2011 pa per were then largely reflected in a B ill which 
was put before Parliament, and which, subject to amendments, was enacted as 
LASPO, a statute which was enacted on 1 May 2012. As  its title suggests, LASPO 
is concerned with a number of different areas of the legal system. 
3. This case is concerned with Part 1 of LASPO, which came into force on 1 
April 2013, is entitled “Legal Aid”, and conta ins 43 sections. Sections 1 to 12  are 
headed “Provision of legal aid”. Sections 8 to 12 are concerned with civil  legal 
services, and sections 13 to 20 with “Criminal legal aid ”. Sections 21 a nd 22 are 
concerned with “F inancial resources ”, sections 23 to 26 with “C ontributions a nd 
costs”, and sections 27 to 30 with “Providers of services etc”. Sections 31 to 43 are 
“Supplementary” provisions. 
4. Section 1(1) of LASPO imposes on the Lord Chancellor a duty to “secure 
that legal aid is made available in accordance with this Part”, and section 1(4) 
enables him to “do anything” to further those functions. Section 2(1) empowers him 
to make “such arrangements as [he] considers appropriate” to carry out those 
functions, and section 3 is concerned with “standards of service”. Section 4(1) 
requires the Lord Chancellor to appoint a “Director of Legal Aid Casework”, defined 
as “the Director”. Se ction 8 defines “civil legal services” as the provision of legal 
advice and assistance as to the law, proceedings, disputes and enforcement other 
than in connection with criminal matters. 

 
 
 
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5. Section 9 of LASPO is entitled “General cases”, and it provides: 
“(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 
(b) the Director  has determined  that the individual  
qualifies for the services in accordance with this Part … 
(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 Parts 2, 3 or 4 of the 
Schedule).” 
6. Section 10 of LASPO deals with “Exc eptional cases”, in respect of which 
civil legal services are to be available even though they would not be available under 
section 9. It includes, in subsection (3), cases where the denial of civil legal services 
would be “a breach of … [an] individual’s Convention rights … or … EU rights”. 
7. Section 11 of LASPO is entitled “Qualifying for civil legal aid”. 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 appr opriate 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 likel y 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. 

 
 
 
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8. Section 41 of LASPO is headed “Orders, regulations and directions”, and 
subsections (1), (2) and (3) are in these terms: 
“(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, and 
(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. 
(3) Orders and regulations under this Part - 
(a) may provide for a person to exercise a discretion 
in dealing with any matter, 
(b) may make provision by reference to a document 
produced by any person, and 

 
 
 
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(c) may make consequential, supplementary, 
incidental, transitional or saving provision.” 
Section 41(6) provides that a statutory instrument containing an order made under 
any section mention ed in section 41(7) “may not be made unless a draft of the 
instrument has been laid before, and approved by a resolution of, each House of 
Parliament”, and section 41(7) included, in para (a), “orders under section 9”. 
9. Schedule 1 to LASPO is headed “Civil Legal Services” and Part 1 sets out 
the “Services”, which are referred to in section 9(1)(a). Over 40 categories are set 
out in Part 1 of Schedule 1, and almost all of them begin with the words “Civil legal 
services provided” either “to” or “in relation to ”. They include “care, supervision 
and protection of children” (para 1), “special educational needs” (para 2), and “abuse 
of an individual … when … a child or a vulnerable adult, but only where (a) the 
services are provided to the individual …” (para 3). T he categories also include 
“appeals relating to welfare benefits” (para 8), “victims of domestic violence and 
family matters” (para 12), and “judicial review”, save where such review will 
produce no benefit to the individual concerned (para 19). Other cate gories are 
“breach of Convention rights by a public authority” (para 22), certain specified 
immigration matters (paras 24 -31), “loss of home” and “homelessness” (paras 33 
and 34), “protection from harassment” (para 37), “in relation to a sexual offence, 
but only where (a) the services are provided to the victim of the offence …” (para 
39). Also, “inquests” (para 41), “environmental pollution” (para 42), and “equality” 
(para 43). Some of these paragraphs are fairly detailed and include exclusions and 
definitions. 
10. Part 2 of Schedule 1 is entitled “Excluded services”, and it is introduced with 
the following words, “The services described in Part 1 of this Schedule do not 
include the services listed in this Part of this Schedule, except to the extent that Part 
1 of this Schedule provides otherwise”. Part 2 contains 18 paragraphs, and (with the 
exception of para 14) they all begin with the words “Civil legal services provided in 
relation to”, and then refer to specific areas, including  “personal injury or death ” 
(para 1), “ a claim in tort in respect of negligence ” (para 2), “ damage to property ” 
(para 6), “ a claim in tort in respect of breach of statutory duty ” (para 8) and “ a 
benefit, allowance, payment, credit or pension” under certain statutes (para 15). 
Paragraph 14 of Part 2 of Schedule 1 is “Civil legal services provided to an 
individual in relation to matters arising out of” establishing, carrying on, or 
terminating a business. 
11. Part 3 of Schedule 1 is  concerned with “Advocacy: exclusion and 
exceptions”, and it sets out tribunals before which advocacy is within the Services 
covered by Part 1 of the Schedule. Part 4 of that Schedule is concerned with 
“Interpretation”. 

 
 
 
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The draft order 
12. In April 2013, the Ministry of Justice issued a paper, Transforming Legal 
Aid, and subsequently carried out a public consultation exercise in connection with 
its proposals. In September 2013, the Ministry published its response to the results 
of that exercise, Transforming Legal Aid: Next Steps. In the September 2013 paper, 
the Ministry stated at para 132 that, subject to certain specified exceptions: 
“[T]he Government has decided to proceed with the 
introduction of a residence test in civil legal aid so that only 
those who are: 
• lawfully resident in the UK, Crown Dependencies or 
British Overseas Territories at the time the application for civil 
legal aid was made; and 
• have resided lawfully in the UK, Crown Dependencies 
or British Overseas territories for a continuous period of at least 
12 months at any point in the past 
would be eligible for civil legal aid …” 
13. The specified exceptions were (i) serving members of the armed forces and 
their families, (ii) asylum seekers , and (iii) in relation to the second bullet point, 
children aged under 12 months. No exception was to be made for older children who 
were not responsible for their lack of lawful resident status. The  Ministry later 
agreed to exclude certain classes of case from the ambit of this proposal, namely 
“categories of case which broadly  relate to an individual’s liberty, where the 
individual is particularly vulnerable, or where the case relates to the protection of 
children”. 
14. In its September 2013 paper, the Ministry described the proposal as “justified 
and proportionate”, and pointed out  that “ anyone excluded by the residence test 
would be entitled to apply for exceptional funding”.  In para 6.3 of an Equality 
Statement attached to that paper, the Ministry described the “primary objective” of 
the proposal 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”, and further stated that “the reforms seek to promote public confidence in 
the system by ensuring limited public resources are tar geted at those cases which 
justify it and those people who need it”. 

 
 
 
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15. Also in September 2013, the Lord Chancellor decided to proceed with his 
proposal described in paras 12 and 13 above, and to give effect to that decision by 
laying a draft order before Parliament. The draft order was put before Parliament on 
31 March 2014. The draft order stated that it was made pursuant to sections 9(2)(b), 
41(1)(a) and (b), 41(2)(a) and (b), and 41(3)(b) and (c) of LASPO. 
16. The draft order effectively provides that an individual who fails the residence 
test would no longer qualify for civil legal aid for any types of claim, subject to 
certain limited exceptions. The effect of the draft order was to insert a new para 19 
into Part 2 of Schedule 1, whose effect was explained by Moses LJ in the Divisional 
Court at [2015] 1 WLR 251, paras 21-24, and was more shortly summarised by Mr 
Eadie QC, who appeared for the Lord Chancellor, in a description adopted by Laws 
LJ in the Court of Appeal at para 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 we re 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). 
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 te st would have been 
entitled to apply for legal aid under the  Exceptional Case 
Funding … regime in section l0 of LASPO whose purpose is 
to ensure that all those who have a right to legal aid under the  
European Convention or EU law are able to obtain it.” 
The instant proceedings 
17. Before the draft order had been laid before Parliament, Public Law Project 
(“PLP”) applied to the High Court for a declaration  that it would be unlawful. The 
alleged unlawfulness was based on two grounds, namely that the draft order w as or 
would be (i) ultra vires , ie outside the scope of the power granted to the Lord 
Chancellor in LASPO to bring forward delegated legislation, and (ii) unjustifiably 
discriminatory in its effect. The Divisional Court, in a judgment given by Moses LJ 
(with whom Collins and Jay JJ agreed) , held that the draft order was unlawful on 

 
 
 
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both grounds - [2015] 1 WLR 251. As the draft order was before Parliament at the 
time of the decision of the Divisional Court, it was withdrawn, and that remains the 
position today. 
18. The Lord Chancellor appealed against both conclusions reached by the 
Divisional Court. The Court of Appeal, in a judgment given by Laws LJ (with whom 
Kitchin and Christopher Clarke LJJ agreed), allowed his appeal, holding that the 
draft order was intra vires and, while it was discriminatory in its effect, the 
discrimination could be justified - [2016] 2 WLR 995. 
19. PLP now appeals to this c ourt, and maintains both the ultra vires and the 
discrimination arguments. 
The ultra vires principle in the present context 
20. The draft order, once formally made, would, of course, be secondary, or 
subordinate, legislation, unlike LASPO itself which, as a statute, is primary 
legislation. Primary  legislation is initiated by a B ill which is placed before 
Parliament. To the extent that Parliament considers it appropriate, all  or any of the 
provisions of a Bill can be subject to detailed scrutiny, discussion, and amendment 
in Parliament before being formally enacted as primary legislation; it is then 
formally approved by the mon arch, whereupon it becomes a statute. In our sy stem 
of parliamentary supremacy (subject to arguable extreme exceptions, which I hope 
and expect will never have to be tested in practice) , it is not open to a court to 
challenge or refuse to apply a statute, save to the extent that Parliament authorises 
or requires a court to do so. 
21. Subordinate legislation consists of legi slation made by members of the 
Executive (often, as in this case, by Government ministers), almost always pursuant 
to an authority given by Parliament in primary legislation. The draft order in the 
present case would be a statutory instrument, which is a type of subordinate 
legislation which must be laid in draft before Parliament. Some statutory instruments 
are subject to the negative resolut ion procedure - ie they will become law unless, 
within a specified period, they are debated and voted down. Other statutory 
instruments, such as the draft order in this case, are subject to the affirmative 
resolution procedure - ie they can only become law if they are formally approved by 
Parliament - see subsections (6) and (7)(a) of section 41. 
22. 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 

 
 
 
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amended by Parliament. Accordingly, it is well established that, unlike statutes, the 
lawfulness of statutory instruments (like other subordinate leg islation) can be 
challenged in court. As Lord Diplock said in F Hoffmann -La Roche & Co v 
Secretary of State for Trade and Industry [1975] AC 295, 365, “even though 
[subordinate legislation] is contained in an order made by statutory instrument 
approved by resolutions of both Houses of Parliament, … I entertain no doubt that 
the courts have jurisdiction to declare it to be invalid if they are satisfied that in 
making it the Minister who did so acted outwith the legislative powers conferred 
upon him by the … Act of Parliament under which the order [was] purported to be 
made …”. 
23. 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. 
24. Normally, statutory provisions which provide for subordinate legislation are 
concerned with subsidiary issues such as procedural rules, practice directions, and 
forms of notice; hence statutory instruments are frequently referred to as regulations. 
However, such statutory provisions sometimes permit more substantive issues to be 
covered by subordinate legislation, and, as is the case with section 9(2)(b) of 
LASPO, they sometimes permit subordinate legislation which actually amends the 
statute concerned (or even another statute), by addition, deletion or variation. 
25. As explained in Craies on Legislation (10th ed  (2015)), edited by Daniel 
Greenberg), para 1.3.9: 
“The term ‘Henry VIII power’ is commonly used to describe a 
delegated power under which subordinate legislation is enabled 
to amend primary legislation.” 
When 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. 

 
 
 
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26. The interpretation of the statutory provision conferring a power to make 
secondary legisl ation is, of course, to be effected in accordance with normal 
principles of statutory construction. However, in the case of an “amendment that is 
permitted under a Henry VIII power”, to quote again from Craies (op cit ) para 
1.3.11: 
“as with all delegated p owers the only rule for construction is 
to test each proposed exercise by reference to whether or not it 
is within the class of action that Parliament must have 
contemplated when delegating. Although Henry VIII powers 
are often cast in very wide terms, the  more general the words 
by Parliament to delegate a power, the more likely it is that an 
exercise within the literal meaning of the words will 
nevertheless be outside the legislature’s contemplation.” 
27. In two cases, R v Secretary of State for Social Securit y, Ex p Britnell [1991] 
1 WLR 198, 204 and R v Secretary of State for the Environment, Transport and the 
Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 383, the House of Lords has cited 
with approval the following observation of Lord Donaldson MR  in McKiernon v 
Secretary of State for Social Security, The Times, November 1989; Court of Appeal 
(Civil Division) Transcript No 1017 of 1989, which is to much the same effect: 
“Whether subject to the negative or  affirmative resolution 
procedure, [subordinate legislation] is subject to much briefer, 
if any, examination by Parliament and cannot be amended. The 
duty of the courts being to give effect to the will of Parliament, 
it is, in my judgment, legitimate to take account of the fact that 
a delegation to the Executive of  power to modify primary 
legislation must be an exceptional course and  that, if there is 
any doubt about the scope of the power conferred upon the  
Executive or upon whether it has been exercised, it should be 
resolved by a restrictive approach.” 
28. Immediately after quoting this passage in Spath Holme, Lord Bingham went 
on to say “ [r]ecognition of Parliament’ s primary law -making role in my view 
requires such an approach ”. He went on to add that, where there is “ little room for 
doubt about the scope of the power” in the statute concerned, it is not for the courts 
to cut down that scope by some artificial reading of the power. 

 
 
 
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Is the draft order ultra vires? 
29. The argument that the draft order is ultra vires the powers granted to the Lord 
Chancellor is, in essence, as follows. The 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) of LASPO, and nothing in section 41 undermines 
that contention. 
30. In my view, that argument is sound, and should be accepted. Turning to 
section 9(2)(b) itself, as a matter of ordinary language, the relevant parts of the draft 
order do not seek to “vary or omit services”: rather they seek to reduce the class of 
individuals who are entitled to receive those services by reference to a personal 
characteristic or circumstance unrelated to the services. Of course, the words of 
section 9(2)(b) have to be interpreted in their context, and I accept that a sufficiently 
clear and strong context could justify a different conclusion, in the sense that the 
words of section 9(2)(b) could, as a matter of language, just about extend to a 
regulation such as  the draft order.  Nonetheless, that is not their natural meaning, 
and, of course, the natural meaning of the words in question is an important factor 
in an issue of statutory interpretation, particularly when they suggest that a so-called 
Henry VIII power does not extend to authorise the subordinate legislation in 
question. 
31. When one turns to the wider statutory context, I consider that it supports, 
rather than undermines, the conclusion indicated by the natural meaning of the 
words of section 9(2)(b) on the ir own. First, section 9(2)(b) permits a variation or 
omission of the services set out in Part 1 of Schedule 1, by, inter alia, modifying that 
Part or Part 2 of that Schedule. Each of the services identified in Part 1 and Part 2 is 
linked to a specific typ e of legal issue or claim, and has nothing to do with the 
personal circumstances or characteristics, and in particular the geographical 
residence, of the potential recipient of the services, other than those which relate to 
the issue or the services concerned. The point is well demonstrated by the fact that, 
as mentioned in para 10 above, all the existing 18 paragraphs of Part 2 of the 
Schedule are concerned with “Civil legal services provided in relation to” specified 
areas of litigation, whereas the new p roposed para 19 will have nothing to do with 
any specified area of litigation at all. 
32. It is true that, as mentioned in para 9 above, some provisions, such as paras 
3(a) and 39(a) of Part 1, limit the right to receive legal services to one specific group, 
namely the victims of alleged wrongdoing, and exclude, for instance, the alleged 

 
 
 
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perpetrators. However, that does not in any way undermine PLP’s case, because the 
objection to the draft order is that it excludes (albeit subject to exceptions) a group 
of individuals on grounds which have nothing to do with the issue or services 
involved. 
33. This conclusion is supported by the contrast in the wording of the tw o 
subsections of section 9. Subsection (1) states that “[c]ivil legal services are to be 
available to an individual” if (a) “they are civil legal services described in Part 1 of 
Schedule 1”, and (b) the Director determines “that the individual qualifies for the 
services”. Thus, subsection (1) clearly distinguishes between the question whether 
the particular services qualify - para (a) - and whether the p articular individual 
qualifies - para (b). When one turns to the subsection under which the draft order in 
the present case is said to have been made, both para (a) and para (b) of subsection 
(2) refer only to “services” within Part 1 of Schedule 1. The natural inference from 
this is that subsection (2) is concerned with adding to, varying or omitting services, 
and not the individuals to whom the services may be provided. 
34. Looking elsewhere in LASPO, whereas section 9, the section under which 
the draft order was purportedly made, is concerned with  the issues in respect of 
which civil legal services are to be available, section 11 of LASPO is the provision 
which appears to be concerned with identifying the characteristics or circumstances 
of individuals who are to qualify for civil legal aid. Sectio n 11 gives rise to two 
points in favour of PLP’s case. First, the very fact that it is that section which sets 
out the personal characteristics or circumstances  of those individuals who are 
entitled to civil legal aid provides obvious support that such mat ters are outwith 
section 9. Secondly, the factors listed in section 11(1) or (3), some of which are 
described in para 7 above, are concerned with criteria which are connected to the 
need of the individual for the services, the cost of the services, the ext ent and 
likelihood of the benefit from those services and the conduct of the individual “in 
connection with” the services. There is no criterion which is based on personal 
characteristics or circumstances which have nothing to do with the issue involved, 
the services concerned, or the need of the individual concerned for financial 
assistance. (It is true that “public interest”, mentioned in section 11(3)(j), would be 
capable in some contexts of extending to personal characteristics or circumstances, 
but, read in their context, those words cannot have such an effect in section 11(3), 
and it was not argued otherwise.) This suggests that the draft order is attempting to 
do something which the legislature never had in mind when enacting Part 1 of 
LASPO, let alone section 9. As Lord Carnwath mentioned, that point is underlined 
by the strong presumption that, as it is put in Bennion on Statutory Interpretation  
6th ed (2013), section 129, an “enactment applies to foreigners … within its territory 
as it applies to persons … within that territory belonging to it”. 
35. It was conceded on behalf of the Lord Chancellor that he could not have made 
the draft order under section 11. Given that that section is concerned with 

 
 
 
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prescribing the characteristics and circumstances of th ose who should be able to 
qualify for civil legal services, it seems to me that that concession tends of itself to 
provide additional support for PLP’s contention that the Lord Chancellor cannot 
make such an order under section 9. 
36. The Court of Appeal concl uded that section 41, and in particular section 
41(2)(b), could be invoked to defeat this contention. It is true that  section 41(2)(b) 
permits any order made under section 9(2)(b) to “make provision by reference to … 
services provided for a particular class of individual”. However, I cannot accept that 
this means that the power to make orders under section 9(2)(b) is thereby extended 
to exclude a whole class of individuals from the scope of Part 1 of LASPO by 
reference to their residence. Section 41 is clearly intended to grant ancillary powers 
to those powers which are, as it were, primarily granted by provisions such as section 
9: it is not intended to permit an alteration in the nature, or a substantive extension, 
of those powers. The observations in Craies, cited in para 26 above, is very much in 
point. In my view, in relation to his powers under section 9(2), section 41(2)(b) 
enables the Lord Chancellor to make limitations such as those already found in paras 
3(a) and 39(a) of Part 1 of Schedule 1 to LASPO, and explained in para 8 above. 
37. Finally, looking at the issue more broadly, it is said that one of the main 
purposes of Part 1 of LASPO was to reduce the availability of legal aid in connection 
with legal advice and representation in relation to civil c laims, and that this is also 
the reason for the draft order. It is also said that one of the aims of the provisions of 
sections 9 and 11 of, and Parts 1 and 2 of Schedule 1 to, LASPO is to direct legal 
aid to what are believed to be the individuals who, an d types of claim which, are 
most deserving of public support, and that the draft order has that aim too. However, 
even if they are right (which in a broad sense I think they are), those contentions 
involve expressing the aim of the legislation in far too g eneral terms to justify 
rejecting PLP’s case. As is apparent from sections 9 and 11 themselves, and from 
the Ministry of Justice’s June 2011 paper referred to in para 2 above, the purpose of 
Part 1 of LASPO was, in very summary terms, to channel civil 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. The exclusion of individuals from the scope of most area s of civil legal 
aid on the ground that they do not satisfy the residence requirements of the proposed 
order involves a wholly different sort of criterion from those embodied in LASPO 
and articulated in the 2011 paper. 
Conclusion 
38. Accordingly, in agreement with the Divisional Court, I have reached the 
conclusion that the appeal should be allowed on the first, ultra vires, issue. 

 
 
 
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39. We had unanimously come to this view at the end of the argument on the 
ultra vires issue, and decided that, subject to the parties seeking to persuade us 
otherwise, it would be wiser not to deal with the discrimination issue. The parties 
did not seek to dissuade us from this course, and therefore it would be inappropriate 
to say anything more about it.