Government plans to introduce a residence test for civil legal aid eligibility are lawful, the Court of Appeal has ruled.
The lord chancellor appealed the High Court’s decision last year that the legislation he proposed to introduce was unlawful on the grounds it was ultra vires and unjustifiably discriminatory.
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.
In Public Law Project v The Lord Chancellor, Lord Justice Laws (pictured) said James Eadie, representing the lord chancellor, was right to submit that ‘to read the statutory purpose narrowly, as the divisional court did, places severe constraints on the government’s ability to control the legal aid budget by means of rational decisions as to which cases can legitimately be accorded the highest priority, whether on the grounds of need or otherwise’.
He said place of residence was not a characteristic, such as sex or race, ‘which is specially protected by the law on the footing I have described’.
There was a ‘profound’ difference, Laws said, ‘between on the one hand the state’s duty to ensure fair and impartial procedures and to avoid undue legal obstacles to access to the courts, and on the other a putative duty to fund legal representation’.
A spokesperson for the Ministry of Justice said it was ‘delighted’ with the judgment. ‘We believe in the principle of the residence test. It is right that individuals should have a strong connection with the UK to benefit from the civil legal aid scheme.’
The Public Law Project hopes to take the case to the Supreme Court.