The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal midway through a hearing.
Yesterday the highest court began hearing Public Law Project’s challenge to the lawfulness of government plans to introduce a residence test for civil legal aid eligibility. The Law Society and the Office of the Children’s Commissioner intervened in the case.
R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent) was scheduled to be heard over two days.
However, at the end of the first day the court announced that it was allowing PLP’s appeal on the ground of one of its challenges – that the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 was ultra vires the enabling statute.
The government had been seeking to introduce the residence test via secondary legislation.
A spokesperson for the Ministry of Justice told the Gazette last night: ‘We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.’
To satisfy the residence test, an individual would need to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British overseas territory on the day of the application for civil legal aid.
Unless they were under 12 months’ old or a particular kind of asylum claimant, or involved with the UK armed forces, applicants would have had to be lawfully resident for a 12-month period.
The appeal’s second ground was that the residence test was unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.
The Supreme Court confirmed on its website that, following its decision on the first ground, the court ‘asked the parties whether they wished to address the court on the second issue, ground (2)’.
It stated: ‘The case has been adjourned while this is considered. The case may therefore not continue [on Tuesday].’
The court this morning confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.
Law Society chief executive Catherine Dixon said: ‘This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.
‘The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.
‘We applaud the court’s decision in upholding the rule of law.’
PLP’s counsel - Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup - were instructed by London firm Bindmans.
Bindmans partner and public law specialist John Halford (pictured) told the Gazette he could not recall the Supreme Court ‘allowing an appeal on the spot with a seven-justice court like this. It’s totally unprecedented’.
Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.
‘The question will be what the status of our appeal [will be] at that stage,’ he said. ‘There’s an argument to get on with it, decide whether on principle there can be a lawful residence test.
‘But a slightly more practical and pragmatic argument is that you do not need to do it now because the residence test in its current form is definitely unlawful.
‘Maybe there will be no future residence test. If there is, we can tackle it then. It’s more about how we want to do that without having to climb our way right back up the judicial ladder to get back to where we were at 4pm yesterday afternoon.’
He added: ‘Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.’