judgement:
The Mental Capacity Act 2005 established a comprehensive scheme for decision making on behalf of people who are unable to make the decision for themselves.
The decision maker whether a carer, donee of a power of attorney, court appointed deputy or the court stands in the shoes of the person who is unable to make the decision known as P and makes the decision for him.
The decision has to be that which is in the best interests of P.
But it is axiomatic that the decision maker can only make a decision which P himself could have made.
The decision maker is in no better position than P. So what is the decision maker to do if he has reached the conclusion that a particular course of action is in the best interests of P but the body who will be required to provide or fund that course of action refuses to do so? Specifically, what is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make the decision for himself and members of his family about what should be provided for him?
The facts
MN is a profoundly disabled young man, born in November 1993, so now in his early twenties.
In the words of the trial judge, Eleanor King J, at [2013] EWHC 3859 (COP), [2014] COPLR 11, para 6, he has severe learning and physical disabilities together with autism and an uncommon epileptic condition resulting in frequent seizures and risk of sudden death.
A nurse has to be available at all times to administer emergency drugs to MN if the need arises.
MN had poor muscle tone and uses a wheelchair.
He is doubly incontinent.
MN has the cognitive ability of a child aged less than 1 year.
He has no speech but can express his feelings by facial expression, sounds and gestures.
MN needs help with feeding as he is vulnerable to choking; he requires 2:1 care with his personal care and accessing the community.
Overall MN has to have his carers nearby at all times and during the night MN has one sleeping member of staff and one member of staff who stays awake to look after him.
MN is one of six siblings.
He has two brothers, BN and DN, who are also profoundly disabled and live in residential care.
He has two sisters who continue to live with their parents and another brother who lives independently.
As Bracewell J put it in care proceedings in the Family Division: To care for three such children, requiring constant 24 hour supervision is a Herculean task which this family as a team has undertaken with love and total commitment.
The closeness of the family is striking.
The physical care and attention to safety has been exemplary.
All the family have been involved with every aspect of minute by minute care and supervision.
There is no doubt that love and commitment have been shown to these children to the highest degree.
Nevertheless, despite these heroic efforts, the family were unable to cater for all their childrens needs, nor were they able to co operate with the authorities in doing so.
Hence the need for care proceedings.
A care order was made in respect of MN in December 2001 when he was just eight years old.
Bracewell J found that his father had a long history of obstruction of professionals, of refusal to co operate with authority and of being intimidating to anyone with whom he disagreed.
At its height, he received a custodial sentence for assaulting a social worker.
An application to discharge the care order was refused in July 2005 when MN was 11.
Bracewell J found that history had repeated itself in the intervening years.
Accordingly, MN was still in the care of the local authority in August 2011.
He was due to reach the age of 18 in November 2011, on which date the care order would come to an end (Children Act 1989, section 91(12)).
The local authority, predicting that the parents would not see eye to eye with the authorities about what would then be best for MN, issued proceedings in the Court of Protection, seeking orders that: (1) MN reside in such accommodation and receive such education and care as directed by the local authority. (2) MNs contact with his mother, father and other family members be regulated by the local authority and be supervised by such persons when appropriate as the local authority directed.
On MNs 18th birthday, responsibility for his care was taken over by the National Health Service, now the local Clinical Commissioning Group (CCG) responsible for commissioning care for him.
MN has been assessed as having a primary health need (under regulation 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, SI 2012/2996).
Two days later, with the permission of the Court, he moved to the residential care home where he now lives.
It was not in dispute that MN lacks the capacity both to conduct this litigation and to make decisions about his residence, education or the arrangements for his care or contact with his family.
Declarations to that effect have been made by consent.
He is represented by the Official Solicitor in these proceedings.
The Official Solicitor instructed an independent social worker to report on MNs best interests in respect of his residence, care, education and contact.
The social worker has produced three reports in the course of these protracted proceedings.
His position since 2011 has been that the care home where MN lives provides a safe, settled and supportive environment for him.
The parents have for the time being accepted that this is where he should stay, although it is clear that their ultimate aim is for him to come and live with them.
Despite their difficulties in working with MNs father and mother, the care home has instigated much more relaxed arrangements for contact with MN.
At the time of the hearing before Eleanor King J, the plan was that, providing they gave the home one hours notice (as did the families of all the other residents), they could visit whenever they chose during the day.
There are also periodic meetings at a caf and arrangements for him to meet his brothers BN and DN, who are also in residential care.
Thus, by the time of the hearing, the issues between the CCG and the parents had narrowed to two.
First, the parents wished for MN to come and visit them in their home, some six miles away from his care home.
An occupational therapist had assessed the home and concluded that it could accommodate MN and his wheelchair for a short visit.
But trained carers would have to go with him, be allowed into the home to settle him down, and wait outside while he was there (the parents have been reluctant to allow professionals into their home).
One of the carers would have to be trained to administer emergency medication if required.
Only the care home manager and her deputy were willing to do this, the rest of her staff fearing that the parents would not co operate, would interfere with the care they provided for MN and would be aggressive and intimidating towards them.
Hence the care home was unwilling to facilitate MNs visits to the family home, which would therefore require alternative carers to be trained and paid to do so.
Second, MNs mother wished to be allowed to assist the care home staff with his intimate care when she was visiting him there.
The independent social worker thought that MNs interaction with his mother in this way could form an important element in his quality of life, provided that she was able to work with the staff.
Once again, the care home was not willing to allow this.
This was due partly to fears as to the mothers co operation but also because the parents had declined an offer of the necessary training in manual handling.
MN is a grown man whose limbs can thrash around, particularly if he has a fit, which can happen at any time without warning.
The final hearing of the application, initially made by the local authority but now maintained by both the CCG (as lead applicant) and the local authority, was listed for three days in November 2013.
Voluminous evidence no fewer than 2,029 pages, including 1,289 pages of expert evidence, contained in five lever arch files and position statements had been filed.
The independent social worker was due to attend.
The CCG had written in October making its final proposals for contact between MN and his family.
The CCGs position was that it was not in MNs best interests for his mother to be involved in his personal care or for him to have visits to the family home.
The staff were unwilling to facilitate this and the CCG was not prepared to fund alternatives.
The Official Solicitor, for MN, supported the CCGs position.
The parents disputed their position and the reasons for it.
In particular, they claimed that the care homes fears about lack of co operation were unwarranted and that the mother was now prepared to undergo the necessary training.
At 11.32 pm on the day before the hearing was due to begin, counsel for the local authority emailed the other parties to give notice of her intention to argue that the Court of Protection had no jurisdiction to decide the issues.
The matters that the parents wanted were not on the table given that the CCG had said that it was not willing to allow or to arrange them, or to commission staff or to fund the necessary resources.
These were public law decisions which could only be challenged by way of judicial review.
The Court of Protection could only decide between the available options, making a choice that MN could make if he were able, and it was inappropriate to use the proceedings to try and obtain a best interests declaration in order to influence a public law decision.
It was, to say the least, unfortunate that the legal issue was raised so late in the day.
It had been foreshadowed in a position statement from the local authority in August 2013 but at a directions hearing later that month directions were given for the filing of further evidence and the parties had prepared for a three day trial of the disputed issues of fact.
No skeleton argument raising a preliminary issue of law had been filed.
The parents came to court expecting the court to consider the contact issue over three days in which witnesses would be called and cross examined, after which the court would decide whether what they wanted or what the authorities proposed was in MNs best interests.
They could be forgiven for feeling a burning sense of injustice at what took place instead.
On the first day, Eleanor King J heard argument on the legal issue, which she labelled jurisdictional issues in her judgment.
Counsel for the parents raised no objection, being aware of the issue and familiar with the authorities.
Written submissions on human rights issues were also made on behalf of the father and responded to jointly by the CCG and local authority.
The judge then spent the next day writing a judgment, correctly described by Sir James Munby P in the Court of Appeal as detailed and careful: [2015] EWCA Civ 411; [2016] Fam 87, para 50.
She delivered this on the third day (and perfected it later).
She accepted the argument put forward by the local authority and CCG and declined to embark upon a hearing of the evidence or resolving the factual disputes.
Her conclusion was that the Court of Protection has no greater powers than the patient would have if he were of full capacity.
As she explained, at para 53: If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care.
The care providers may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with MNs mother.
MN with capacity would have the following options: (i) accept the conditions of residence at the care providers establishment, (ii) privately fund his care elsewhere, or (iii) seek to negotiate with the ACCG in the hope of them agreeing to fund his removal to a different residential unit which would allow his mother to assist with his personal care.
What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers to agree to his mother coming into their facility and assisting with his intimate care.
Judicial review was the only proper vehicle through which to challenge unreasonable or irrational decisions made by care providers and other public authorities.
In rare cases where a public authority might be acting in breach of convention rights by refusing to fund a particular form of care that could be raised in the Court of Protection by way of a formal application under section 7 of the Human Rights Act 1998.
In this case, as contact at the family home was not an available option now or in the foreseeable future, the court should not embark upon a best interests analysis of contact at the parents house as a hypothetical possibility.
Hence she was satisfied that the contact plan now proposed by the CCG was in MNs best interests.
She therefore made a comprehensive order, among other things, declaring (1) that it was in MNs best interests to continue to reside and receive care at his current care home or, should that come to an end for any reason or the CCG or public body responsible for his residence and care decide that it is no longer in his interests, to move to and reside and receive care at a placement identified by them; and (2) that it was in MNs best interests to have contact with his parents and other members of his family in accordance with the detailed plan set out in a schedule.
Both parents appealed to the Court of Appeal.
The President observed that the appeal raised fundamental questions as to the nature of the Court of Protections jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patients family (para 9).
In his extensive review of the authorities, he took as his starting point the principle in A v Liverpool City Council [1982] AC 363, that the wardship jurisdiction of the High Court in relation to children should not be used to circumvent or challenge the statutory powers and duties of local authorities in relation to children in their care (para 11).
He concluded that the judge was right in all respects and essentially for the reasons she gave (para 79).
He gave four reasons why the Court of Protection should not embark on the kind of process for which the parents contended: first, it is not its proper function to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it; second, it should not embark upon such an enquiry in order to provide a platform or springboard for possible future proceedings in the administrative court; third, such an exercise runs the risk of confusing the different perspectives and principles governing the exercise by the Court of Protection of its functions and the exercise by a public authority of its functions; and fourth, it would risk exposing the public authority to impermissible pressure (para 82).
This appeal
The father, with the mothers support, now appeals to this Court.
On behalf of the father, Ms Kerry Bretherton QC makes essentially the argument that she made below.
The Court of Protection has power under section 16(2)(a) of the Mental Capacity Act 2005 to make a decision on any matter in relation to which P lacks the capacity to decide.
Among the examples given in section 17 of the use of the courts powers under section 16 in relation to personal welfare is deciding what contact, if any, P is to have with any specified person.
Hence the court has jurisdiction to make that decision.
Any decision made on behalf of a person who lacks capacity must be made in his best interests.
Only once that decision is made should the funding options be considered.
She accepts that the court has no power to order the CCG to fund what the court considers to be in Ps best interests.
But the CCG can be expected to give careful consideration to the courts findings on disputed issues of fact, such as, in this case, the willingness of the parents to co operate with the authorities and the care home staff and what would actually be required to make their proposals viable.
If the CCG maintains its refusal to fund whatever the court thinks best, that can be challenged in judicial review proceedings, albeit only on the usual judicial review grounds, or under the Human Rights Act 1998 on human rights grounds.
In other words, as Eleanor King J put it, Best interests first; Judicial Review second (para 51).
Otherwise, a public authority would be able to cut off the Court of Protections best interests inquiry at the outset, simply by refusing to provide or fund anything other than its own proposals.
Ms Weereratne QC, on behalf of the mother, supports that case.
She emphasises that there were factual disputes relevant to the two issues in the case which were important to MNs quality of life; that the individuals preferences are at the centre of the care planning process and that it is the function of the Court of Protection to substitute for the preferences of a person who cannot decide or articulate them for himself; and that this approach would be more consistent with the equality and non discrimination principles of the United Nations Convention on the Rights of Persons with Disabilities, which are taken into account by the European Court of Human Rights in its interpretation of the Convention rights: see, most recently, AN v Lithuania, Application No 17280/08, Judgment of 31 May 2016, where the court cited article 12 of the Convention (para 69) and held that where a measure of protection is necessary, it should be proportionate to the degree of incapacity and tailored to the individuals circumstances and needs (para 124).
The approach adopted in the courts below was supported, albeit with nuanced variations, by Mr Hugh Southey QC on behalf of the CCG and Mr Richard Gordon QC on behalf of the Official Solicitor as litigation friend of MN.
Despite the wealth of authority cited in the courts below, the applicable principles are readily established from a combination of the fundamental purpose and specific provisions of the 2005 Act and the decisions of this Court and its predecessor in the House of Lords.
The Mental Capacity Act 2005
The Mental Capacity Act 2005 had its origins in a project begun by the Law Commission in 1989, with the encouragement of, among others, the Mental Health Sub Committee of The Law Society.
The Commission published four Consultation Papers: Mentally Incapacitated and Decision Making: An Overview (CP No 119, 1991); Mentally Incapacitated Adults and Decision Making: A New Jurisdiction (CP No 128, 1993); Mentally Incapacitated Adults and Decision Making: Medical Treatment and Research (CP No 129, 1993); and Mentally Incapacitated Adults and Other Vulnerable Adults: Public Law Protection (CP No 130, 1993).
The Commissions Report, Mental Incapacity (Law Com No 231), was published in 1995.
This was followed by a Consultation Paper issued by the Lord Chancellors Department, Who Decides? Making Decisions on behalf of Mentally Incapacitated Adults (1997, Cm 3803), which followed closely the Law Commissions proposals.
The Governments conclusions were set out by the Lord Chancellors Department in Making Decisions: The Governments proposals for making decisions on behalf of mentally incapacitated adults (1999, Cm 4465).
This adopted most of the principles put forward and recommendations made by the Law Commission.
After pre legislative scrutiny by the Joint Committee on the Draft Mental Incapacity Bill (Session 2002 03, HL 189, HC 1083), the Bill which became the Mental Capacity Act was passed by 2005 and came into force in 2007.
Both the Law Commissions and the Governments consultations revealed wide spread support for legislation along the lines proposed amongst health and social care professionals, carers and voluntary organisations catering for mentally disabled adults and their families and carers, as well as among lawyers and the judiciary.
The Law Commissions project had begun before the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.
At that time, there was no person with legal authority to make decisions on behalf of an adult who was unable to make them for himself, unlike the parent of a child who lacked the competence to do so.
There was no jurisdiction in any court to appoint such a person or to take the decision itself.
The old but little used power of the old Court of Protection to appoint a committee of the person was abolished when the Mental Health Act 1959 came into force.
But there was no statutory procedure under the 1959 Act to take its place.
A person who did have capacity was not able to appoint another person to make decisions about his personal welfare, as opposed to his property and affairs, should he lose capacity in the future.
Hence, the decision in In re F was greeted with great relief, especially among health care professionals.
The House of Lords held that the defence of necessity meant that it was lawful for such professionals and other carers to do what was in the best interests of a person who lacked the capacity to decide for himself whether it should be done.
That principle has found its way, with qualifications, into section 5 of the 2005 Act.
The House of Lords also held that the High Court had an inherent jurisdiction to make declarations in advance that a particular course of action would, or would not, be lawful in accordance with that principle.
Nevertheless, there was still support for legislation.
This would have four main purposes: it would place the necessity principle on a statutory footing; it would clarify the tests, both for incapacity and for the best interests principle; it would provide for lasting powers of attorney in relation to personal welfare decisions as well as decisions relating to property and affairs; and it would provide a new jurisdiction, in a newly constituted Court of Protection, with powers actually to take decisions on behalf of people unable to take them for themselves, or to appoint deputies to do so, as well as to make declarations as to whether or not they lacked that capacity and as to whether or not a particular course of action or inaction would be lawful.
Since that time, the inherent jurisdiction of the High Court has been held to encompass situations in which the necessity doctrine does not arise, because there is no tort to which a defence is required, but there is still jurisdiction to declare whether something is, or is not, in a persons best interests: see St Helens Borough Council v PE [2006] EWHC 3460 (Fam); [2007] 2 FLR 1115.
It has also been held that the 2005 Act has not abolished the inherent jurisdiction, which continues to exist alongside the new jurisdiction: see Westminster City Council v C [2008] EWCA Civ 198; [2009] Fam 11.
Nevertheless, the great majority of cases are brought in the Court of Protection.
It will be apparent from the above account that the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself.
It is not to be equated with the jurisdiction of family courts under the Children Act 1989, to take children away from their families and place them in the care of a local authority, which then acquires parental responsibility for, and numerous statutory duties towards, those children.
There is no such thing as a care order in respect of a person of 18 or over.
Nor is the jurisdiction to be equated with the wardship jurisdiction of the High Court.
Both may have their historical roots in the ancient powers of the Crown as parens patriae over people who were then termed infants, idiots and the insane.
But the Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court.
So what powers does the court have? By section 15(1) and (2) it has power to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; (c) the lawfulness or otherwise of any act (including an omission or course of conduct) done, or yet to be done, in relation to that person.
It will be seen from this that the Act focusses on capacity in relation to a specific decision or matter.
This is consistent with the underlying principles of the Act.
By section 1(2), a person must be assumed to have capacity unless it is established that he lacks it.
Under section 2(1), the question is whether a person lacks capacity in relation to a matter.
There will be people, of whom MN is probably one, who lack capacity in relation to virtually every decision in their life.
But the Act recognises that capacity is variable and may fluctuate.
A person may be perfectly capable of taking some decisions but not others.
A person may be perfectly capable of taking the decision at some times or in some circumstances but not in others.
In the Court of Appeal in this case, Sir James Munby P pointed out that the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate (para 88).
The scope of the declarations which may be made by the Court of Protection under section 15 may be narrower than the scope of those which may be made in the High Court: see XCC v AA [2012] EWHC 2183 (COP); [2013] 2 All ER 988.
But the Court of Protection has the much wider powers of making decisions and appointing deputies under section 16 (para 88).
And declarations have no coercive effect (para 90).
All in all, he concluded it might be thought that, unless the desired order clearly falls within the ambit of section 15 , orders are better framed in terms of relief under section 16 (para 91).
With respect, this is a view that I share.
Section 16 applies if a person (P) lacks capacity in relation to a matter or matters concerning (a) Ps personal welfare, or (b) Ps property and affairs (section 16(1)).
The court may then (a) by making an order, make the decision or decisions on Ps behalf in relation to the matter or matters, or (b) appoint a person (a deputy) to make decisions on Ps behalf in relation to the matter or matters (section 16(2)).
But (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances (section 16(4)).
This approach is consistent with the least restrictive alternative principle, enacted in section 1(6): Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the persons rights and freedom of action.
It also points up another distinction between the 2005 Act and the Children Act 1989: the 2005 Act does not contemplate as a norm the conferring of the full gamut of decision making power, let alone parental responsibility, over an adult who lacks capacity.
Note that a court order under section 16(2)(a) simply makes the decision.
There is no need to declare that the decision made is in Ps best interests, and that may be another reason for preferring orders to declarations.
Section 16 also confers various ancillary powers upon the court (sections 16(5), (7) and (8)).
It also provides that the court may make the order, give the directions or make the appointment on such terms as it considers are in Ps best interests, even though no application is before the court for an order, directions or an appointment on those terms (section 16(6)).
In this respect, the powers of the court do resemble those of the family courts in relation to children, as do its more flexible procedures (of which more later).
Section 17(1) provides that: The powers under section 16 as respects Ps personal welfare extend in particular to (a) deciding where P is to live; (b) deciding what contact, if any, P is to have with any specified persons; (c) making an order prohibiting a named person from having contact with P; (d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; (e) giving a direction that a person responsible for Ps health care allow a different person to take over that responsibility.
This is not an exhaustive list and there are various limitations on the powers of deputies (sections 17(2), 20).
But it is worth noting that section 17(1) does not say, for example, (a) deciding that a named care home must accommodate P, or (b) deciding that a particular person must go and see P whether he wants to or not, or (d) deciding that a person providing health care must provide a particular treatment for P, or (e) deciding that a named person must take over responsibility for Ps health care.
This is consistent with what was said in the Law Commissions report (Law Com No 231), at para 8.19: Some consultees asked whether the courts power to make an order about where the person should live might provide a route to challenge a care plan made by a local social services authority under the National Health Service and Community Care Act 1990.
We trust it is clear from the draft Bill that the court only has power to make any decision which the person without capacity could have made.
Its role is to stand in the shoes of the person concerned.
If that person has no power, under the community care legislation, to demand the provision of particular services then the court can do no such thing on his or her behalf.
The Government echoed this in its white paper, Making Decisions (Cm 4465), at para 7.18: The Law Commission stressed that the court should have no powers to make decisions which the person without capacity could not have made, even if they had retained their capacity.
The court could not, for example, refuse basic care.
It is also consistent with what was said in this Court in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591, at para 18: The judge began in the right place.
He was careful to stress that the case was not about a general power to order how the doctors should treat their patient.
This Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further.
On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity.
Of course, there are circumstances in which a doctors common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that.
Nor is that court concerned with the legality of NHS policy or guidelines for the provision of particular treatments.
Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.
Eleanor King J provided an excellent example of how that principle applies to the circumstances of this particular case, in the passage quoted at para 14 above.
Of course, a person who has the capacity to take a decision for himself may do so for a good reason, a bad reason or no reason at all.
The 2005 Act reflects this by providing, in section 1(4), that A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
Courts and people who take decisions on behalf of a person who is unable to take them for himself, on the other hand, have to take such decisions in the best interests of that person.
Section 1(5) provides that An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Section 4 then goes into some detail about the steps which must be taken to arrive at the conclusion as to what is in his best interests.
These include considering his past and present wishes and feelings, the beliefs and values likely to influence his decision if he had capacity, and other factors which he would be likely to consider if able to do so (section 4(6)).
In other words, it is a decision about what would be best for this particular individual, taking into account, so far as practicable, his individual characteristics, likes and dislikes, values and approach to life.
He must also be involved in the decision as far as reasonably practicable (section 4(4)).
So how is the courts duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself.
This must mean that, just like P, the court can only choose between the available options.
In this respect, the Court of Protections powers do resemble the family courts powers in relation to children.
The family court must also decide what is in the best interests of the child although in the Children Act 1989 this concept is not express but implicit in the courts duty to regard the welfare of the child as its paramount consideration (1989 Act, section 1(1)).
But the court cannot oblige an unwilling parent to have the child to live with him or even to have contact with him, any more than it can oblige an unwilling health service to provide a particular treatment for the child.
This was explained in the case of Holmes Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413, at para 30: When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: the Children Act 1989, section 1(1).
This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults.
It also means that the court may be creative in devising options which the parents have not put forward.
It does not mean that the court can create options where none exist. (Emphasis supplied)
The Holmes Moorhouse case is important for another reason.
It demonstrates how the family court is operating on a different plane and on different principles from a public authority which is deciding how to exercise its statutory powers and duties to provide services.
The parents of three children had separated, the mother remaining in the matrimonial home and the father being ordered to leave.
The family court made a shared residence order, by consent, that the children should live with each parent.
The father then applied to the local authority to be housed under its duties to the homeless under Part 7 of the Housing Act 1996.
These duties vary depending, among other things, upon whether an applicant is in priority need.
Those in priority need include A person with whom dependent children reside or might reasonably be expected to reside (section 189(1)(b)).
The father argued that it was reasonable to expect the children to live with him as the family court had ordered that they should.
The local authority decided that it was not.
The Court of Appeal held that the shared residence order meant that it was.
The House of Lords disagreed.
Lord Hoffmann explained, at para 14, that the questions for the family court and for the local authority were not the same: The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father.
In answering this question, it would no doubt have to take into account the wishes of both parents and the children themselves.
It would also have to have regard to the opinion of a court in family proceedings that shared residence would be in the interests of the children.
But it would nevertheless be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.
The authority was entitled to take into account the fact that housing was a scarce resource, the claims of other applicants and the scale of its responsibilities, when deciding the issue of reasonableness for this purpose.
Nor should a family court use its own powers as a way of putting pressure upon the local authority to decide in a particular way.
Other service providing powers and duties also have their own principles and criteria, which do not depend upon what is best for the service user, although that will no doubt be a relevant consideration.
The Care Act 2014, which is not relevant in this particular case but will be relevant in many which come before the Court of Protection, creates a scheme of individual entitlement to care and support for people in need of social care.
But it has its own scheme for assessing those needs (section 9) and its own scheme for determining eligibility (section 13) and then deciding how those eligible needs should be met (section 24).
The Act even provides for the possibility of introducing appeals to a tribunal (section 72), although this has not yet been done.
The National Health Service also has its own processes for assessing need and eligibility, albeit not in a legislative context which recognises individual legal entitlement.
Decisions can, of course, be challenged on the usual judicial review principles.
Decisions on health or social care services may also engage the right to respect for private (or family) life under article 8 of the European Convention on Human Rights, but decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well being of the country (see McDonald v United Kingdom [2015] 60 EHRR 1).
Here again, therefore, the legal considerations, both for the public authority and for the court, are different from those under the 2005 Act.
Discussion
So how does all this fit together in a case such as this? It is perhaps unfortunate that the issue was described in the Court of Protection as one of jurisdiction and that term was used in the statement of facts and issues before this Court.
The issue is not one of jurisdiction in the usual sense of whether the court has jurisdiction to hear the case.
After all, the Court of Protection made the orders which it was asked to make in this case and no one has suggested that it had no jurisdiction to do so.
It was seized of an application properly made by the authorities responsible for providing services for MN.
The context was a care order giving the local authority parental responsibility for him which was about to come to an end.
No doubt if there had been no dispute with the family about his care, there would have been no need to make an application.
Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in Ps best interests for the act to be done.
This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court.
But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the deprivation of liberty safeguards in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case.
The court clearly has jurisdiction to make any of the orders or declarations provided for in the Act.
The question is not strictly one of jurisdiction but of how the case should be handled in the light of the limited powers of the court.
What may often follow such an application will be a process of independent investigation, as also happened in this case, coupled with negotiation and sometimes mediation, in which modifications are made to the care plan and areas of dispute are narrowed, again as happened in this case.
But it does not follow that the court is obliged to hold a hearing to resolve every dispute where it will serve no useful purpose to do so.
The Court of Protection has extensive case management powers.
The Court of Protection Rules do not include an express power to strike out a statement of case or to give summary judgment, but such powers are provided for in the Civil Procedure Rules, which apply in any case not provided for so far as necessary to further the overriding objective.
The overriding objective is to deal with a case justly having regard to the principles contained in the 2005 Act (Court of Protection Rules 2007, rule 3(1)).
Dealing with a case justly includes dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues and allocating to it an appropriate share of the courts resources (rule 3(3)(c) and (f)).
The Court will further the overriding objective by actively managing cases (rule 5(1)).
This includes encouraging the parties to co operate with one another in the conduct of the proceedings, identifying the issues at an early stage, deciding promptly which issues need a full investigation and hearing and which do not, and encouraging the parties to use an alternative dispute resolution procedure if appropriate (rule 5(2)(a), (b)(i), (c)(i), and (e)).
The courts general powers of case management include a power to exclude any issue from consideration and to take any step or give any direction for the purpose of managing the case and furthering the overriding objective (rule 25(j) and (m)).
It was held in KD and LD v Havering London Borough Council [2010] 1 FLR 1393 that the court may determine a case summarily of its own motion, but their power must be exercised appropriately and with a modicum of restraint.
The court is clearly entitled to take the view that no useful purpose will be served by holding a hearing to resolve a particular issue.
In reaching such a decision, many factors might be relevant.
In a case such as this, for example: the nature of the issues; their importance for MN; the cogency of the parents demands; the reasons why the CCG opposed those demands and their cogency; any relevant and indisputable fact in the history; the views of MNs litigation friend; the consequence of further investigation in terms of costs and court time; the likelihood that it might bring about further modifications to the care plan or consensus between the parties; and generally whether further investigation would serve any useful purpose.
In this case, consideration along those lines would no doubt have produced the following conclusions.
The issues had been narrowed.
They were important for MN but not as important as the basic question of where he should live.
There were good reasons, not least in the history, for thinking that the parents wishes were impracticable and that the CCG had good reasons for rejecting them.
The Official Solicitor supported this.
In the light of the length of time the proceedings had already taken, and the modifications to the care plan which had been made in the course of them, it was unlikely that investigation would bring about further modifications or consensus.
And it would be disproportionate to devote any more of the courts scarce resources to resolving matters.
Case management along these lines does not mean that a care provider or funder can pre empt the courts proceedings by refusing to contemplate changes to the care plan.
The court can always ask itself what useful purpose continuing the proceedings, or taking a particular step in them, will serve but that is for the court, not the parties, to decide.
Conclusion
This was not a case in which the court did not have jurisdiction to continue with the planned hearing.
It was a case in which the court did not have power to order the CCG to fund what the parents wanted.
Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do.
In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.
I accept that Eleanor King J did not put it in quite these terms (no doubt reflecting the way the issue was argued before her).
However, that is the substance of what she was doing and she was entitled in the circumstances to do it.
I would therefore dismiss this appeal and uphold the orders she made, albeit not for precisely the same reasons.

summary:
The issue in this appeal is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make decisions for himself and members of his family about what should be provided for him.
N is a profoundly disabled man, now in his twenties, who is part of a large, close and loving family.
His disabilities require that carers are in attendance throughout the day and night.
His parents have been unable to co operate with the authorities in meeting his needs and a care order was made in respect of N when he was eight.
This necessarily came to an end when he was eighteen.
Shortly before that point, the local authority issued proceedings in the Court of Protection seeking orders pursuant to the Mental Capacity Act 2005 (the MCA) that it was in Ns best interests for N to reside in a care home and for contact with his parents to be regulated and supervised by the local authority.
Responsibility for his care passed to the National Health Service when he turned 18.
It was not in dispute that N lacked the capacity to make decisions about his residence or contact with his family, nor that for the time being the care home provides a safe and settled environment for N.
By the time of the hearing the issues between Ns parents and the respondent clinical commissioning group had narrowed to whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him there.
The respondent considered that neither was in Ns best interests: the first would require additional trained carers which it was not prepared to fund, and the care home staff had concerns about the second, after the parents had declined an offer of the necessary training in manual handling.
At the hearing the respondent argued that the Court of Protection, on Ns behalf, could only decide between the available options and that it was inappropriate to try to obtain a best interests declaration to put pressure on the respondent to make further funding available.
The judge agreed that she could not consider the parents proposals for this reason, and she declared that the contact plan proposed by the respondents was in Ns best interests.
The Court of Appeal upheld the judges decision.
The Supreme Court unanimously dismisses Ns parents appeal.
Although the Court of Protection had jurisdiction to continue with the planned hearing, it did not have power to order the respondent to fund the parents plan, nor to order the actual care providers to do that which they were unwilling or unable to do.
The judge had therefore been entitled to conclude that no useful purpose was served by continuing the hearing.
Lady Hale, with whom all the Justices agree, gives the only judgment.
The jurisdiction of the Court of Protection is limited to decisions that a person (P) could take if he had the capacity to do so.
It is not to be equated with the jurisdiction of the courts to make orders in respect of children: under the MCA the court does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court [24].
The MCA focuses on capacity in relation to a specific decision or matter.
Rather than granting declaratory relief available under section 15, it is better if possible for the court to make orders under section 16 [26].
There is scope under section 16 for the court to make a decision on Ps behalf, or to appoint a deputy to make such decisions, and the courts powers set out in section 17 include the power to decide where P is to live and what contact, if any, P is to have with any specified persons.
These powers do not extend to decisions compelling third parties to accommodate, or meet, or to provide services or treatments for P [29].
The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the available options.
It resembles the inability of the family court in children cases to oblige an unwilling parent to have the child to live with him, or to oblige an unwilling health service to provide a particular treatment for the child [35].
Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powers and duties to provide public services.
Such decisions can instead be challenged on judicial review principles, where the legal considerations for the public authority and for the court will be different from those under the MCA [37].
It was unfortunate in Ns case that the issue was described as one of jurisdiction since the Court of Protection clearly has jurisdiction to make declarations and orders under the MCA.
The question was rather how Ns case should be handled in the light of the limited powers of the court [38].
The court has wide case management powers, which include the identification of issues which need full investigation, and it is entitled to take the view that no useful purpose will be served by holding a hearing to resolve other issues [41].
In this case, there were good reasons for thinking that Ns parents wishes were impracticable and that the respondent had good reasons for rejecting them.
The Official Solicitor supported the respondent.
It was unlikely that investigation would bring about any further modifications or consensus and it would be disproportionate to devote any more of the courts scarce resources to resolving matters [42].
Accordingly, since the court did not have power to order the respondent to fund what Ns parents wanted, nor to order the actual care providers to do that which they were unwilling or unable to do, the judge was entitle to conclude (as in substance she had) that no useful purpose would be served by continuing the hearing [44].
The appeal is therefore dismissed.


judgement:
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 Offenders 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
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 paper were then largely reflected in a Bill 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.
This case is concerned with Part 1 of LASPO, which came into force on 1 April 2013, is entitled Legal Aid, and contains 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 and 22 are concerned with Financial resources, sections 23 to 26 with Contributions and costs, and sections 27 to 30 with Providers of services etc.
Sections 31 to 43 are Supplementary provisions.
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.
Section 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.
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 they are civil legal services described in Part 1 of (a) 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 add services to Part 1 of Schedule 1, or (a) (b) vary or omit services described in that Part, (whether by modifying that Part or Parts 2, 3 or 4 of the Schedule).
Section 10 of LASPO deals with Exceptional 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] individuals Convention rights or EU rights.
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 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.
subsections (1), (2) and (3) are in these terms: Section 41 of LASPO is headed Orders, regulations and directions, and (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 services provided for the purposes of (a) proceedings before a particular court, tribunal or other person, (b) individual, or (c) services provided for individuals selected by reference to particular criteria or on a sampling basis. services provided for a particular class of (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 (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 mentioned 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.
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).
The 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 categories 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.
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.
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.
The draft order
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
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 individuals liberty, where the individual is particularly vulnerable, or where the case relates to the protection of children.
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 targeted at those cases which justify it and those people who need it.
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.
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 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).
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 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
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 was 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 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.
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.
PLP now appeals to this court, and maintains both the ultra vires and the discrimination arguments.
The ultra vires principle in the present context
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 Bill 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 monarch, whereupon it becomes a statute.
In our system 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.
Subordinate legislation consists of legislation 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 resolution 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.
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.
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 .
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.
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.
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.
The interpretation of the statutory provision conferring a power to make secondary legislation 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 powers 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 legislatures contemplation.
In two cases, R v Secretary of State for Social Security, 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.
Immediately after quoting this passage in Spath Holme, Lord Bingham went on to say [r]ecognition of Parliaments 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.
Is the draft order ultra vires?
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 individuals 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.
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.
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 their 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 type 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 proposed para 19 will have nothing to do with any specified area of litigation at all.
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 perpetrators.
However, that does not in any way undermine PLPs 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.
This conclusion is supported by the contrast in the wording of the two 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 particular 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.
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.
Section 11 gives rise to two points in favour of PLPs 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 matters 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 extent 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.
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 prescribing the characteristics and circumstances of those 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 PLPs contention that the Lord Chancellor cannot make such an order under section 9.
The Court of Appeal concluded 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.
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 claims, 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, and 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 general terms to justify rejecting PLPs case.
As is apparent from sections 9 and 11 themselves, and from the Ministry of Justices 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 individuals 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 areas 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
Accordingly, in agreement with the Divisional Court, I have reached the conclusion that the appeal should be allowed on the first, ultra vires, issue.
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.

dataset_name: UK-Abs

summary:
This appeal concerns the legality of attempts by the Lord Chancellor to introduce a residence test for civil legal aid by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
Part 1 of LASPO came into force on 1 April 2013.
It includes section 9, subsection (1) of which provides that civil legal services are to be available to an individual if they are 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 Part 1 of LASPO.
Part 1 of Schedule 1 accordingly sets out the services for which civil legal aid is available.
Subsection 9(2) permits the Lord Chancellor to (a) add to, and (b) vary or omit services in Part 1 of the Schedule.
In April 2013, the Ministry of Justice (MOJ) issued a paper in which it stated that, subject to certain specific exceptions, the Government would proceed with the introduction of a residence test so that only those who are lawfully resident in the UK (or Crown Dependencies or British Overseas Territories) at the time of the application and have so resided for a continuous period of at least 12 months at any point in the past would be eligible for civil legal aid.
In September 2013, the Lord Chancellor decided to proceed with the proposal and to make regulations to that effect in the form of delegated legislation (the draft order), which was put before Parliament on 31 March 2014.
Before the draft order was laid before Parliament, the Public Law Project applied to the High Court for a declaration that the draft order was unlawful on the basis that it was (i) ultra vires, i.e. outside the scope of the power granted to the Lord Chancellor by LASPO to bring forward delegated legislation; and (ii) unjustifiably discriminatory in its effect.
The Divisional Court held that the draft order was unlawful on both grounds.
Following the decision of the Divisional Court, the Lord Chancellor withdrew the draft order before any debate in the House of Lords could take place.
On appeal, the Court of Appeal allowed the Lord Chancellors appeal on both grounds, holding that the draft order was intra vires and that, while it was discriminatory in its effect, the discrimination could be justified.
The Public Law Project now appeal to the Supreme Court on both grounds.
Following a hearing at which the Court heard argument on the ultra vires issue and indicated that it did not need to hear argument on the discrimination issue, the Supreme Court unanimously allows the
Public Law Projects appeal on the ultra vires issue.
Lord Neuberger gives the only judgment, with which the other Justices agree.
The Public Law Project contend that the exclusion of a specific group of people from the right to receive legal services on the ground of personal circumstances or characteristics, which have nothing to do with the nature of the issue or services involved or the individuals need, or ability to pay, for the services, is not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and that nothing in section 41 undermines that contention.
That argument is accepted by the Court [30].
In declaring subordinate legislation to be outside the scope of the statutory power pursuant to which it was purportedly made, the Court is upholding the supremacy of Parliament over the Executive [23].
Section 9(2)(b) provides a power to vary or omit services, but 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 characteristics or circumstance unrelated to the services (i.e. length of residency) [30].
This interpretation of the wording of section 9(2) is supported by the wider statutory context.
Each of the services identified in Part 1 and Part 2 of Schedule 1 is linked to a specific type of legal issue or claim, and has nothing to do with the personal circumstances or characteristics in particular the geographical residence of the potential recipient of the services [31].
This conclusion is also supported by contrasting the wording of the two subsections of section 9.
Subsection (1) clearly distinguishes between the question of whether the particular services qualify and whether the particular individual qualifies [33].
Section 9(2) is concerned with the services which qualify, and it is section 11 which appears to be concerned with identifying the characteristics or circumstances of individuals who are to qualify for civil legal aid.
The criteria that section 11 sets out all relate to the issue involved, the services concerned, or the need of the individual for financial assistance, in contrast to the draft order.
This indicates that the draft order is attempting to do something which the legislature never had in mind when enacting section 9 [34].
The Court of Appeal concluded that section 41 could be invoked to defeat the contention that the Lord Chancellor could not make the draft order under section 9.
While 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, this cannot extend the power under section 9(2)(b) so as to exclude a whole class of individuals from the scope of Part 1 of LASPO by reference to their residence [36].
Section 41 is clearly intended to grant ancillary powers to those primarily granted under section 9 [36].
Accordingly, the appeal should be allowed on the first, ultra vires, issue, and the Court does not have to deal with the discrimination issue [39].