Government plans to introduce a residence test for civil legal aid eligibility have been savaged by the High Court, which today branded them ‘unlawful’, ‘discriminatory’ and impossible to justify.
The three-judge court ruled unanimously that the lord chancellor exceeded his statutory powers when devising the test and that it would discriminate against ‘foreigners’ without justification.
The government had sought to exclude anyone who could not prove 12-months' lawful residence in the UK from accessing civil legal aid.
Opponents argued that the change, which was due to be introduced in August, would have deprived many people with meritorious cases of legal assistance.
It would have excluded not only recent migrants, but British nationals born and living abroad, women fleeing domestic violence, pre-school-age children and the homeless.
Lord Justice Moses (pictured) said the lord chancellor had no power to introduce the test, which ‘extends the scope and purpose’ of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), through secondary legislation.
He said the test ‘excludes, from those adjudged to have the highest priority need, those whose need is just as great, but whose connection with the UK is weaker’, and is not consistent with the ‘policy and object’ of LASPO.
Parliament’s intention when it passed the act, said the court, was to prioritise legal aid in cases of greatest need, and the proposed residence test is inconsistent with that intention.
He said the proposed regulation introducing the test is ‘ultra vires and unlawful’.
Moses said the test would amount to unlawful discrimination. ‘It is and was beyond question that the introduction of such a test was discriminatory… Indeed, that is its declared purpose.’
‘Within the system provided in Schedule 1 of LASPO, the UK is not permitted to discriminate against non-residents on the grounds that to do so might save costs… Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not,’ said Moses.
He continued: ‘A residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction. In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.’
The judgment highlighted examples of people who would no longer be able to get legal aid under the test.
These include families of recently arrived children with special educational needs, those who lack mental capacity and are protected persons for litigation purposes, and individuals resident abroad who have been subject to serious abuses at the hands of UK forces.
Moses highlighted the case of ‘P’, an adult with severe learning disabilities, who had been forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved. He would have been unable to get assistance, said Moses.
The planned introduction of the test has been criticised by the parliamentary joint committees on statutory instruments and human rights, which questioned both its legality and warned it could put the UK government in breach of international obligations.
Despite that, the House of Commons last week voted to approve the measure. A group of 32 non-governmental organisations has since issued a joint briefing calling on the House of Lords to reject the test using a ‘fatal motion’ on 21 July.
This test case was brought on behalf of legal charity the Public Law Project, which instructed solicitors John Halford and Stephen Grosz at London firm Bindmans, and barristers Michael Fordham QC, Ben Jaffey and Naina Patel of Blackstone Chambers and Doughty Street’s Alison Pickup.
Jo Hickman of the Public Law Project said she is ‘heartened’ by the judgment which ‘embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action’.
Halford said: ‘Using powers that were never his to exercise, the lord chancellor has attempted to refashion the legal aid scheme into an instrument of discrimination so that many of the cases parliament itself identified as most worthy of support could never be taken.’
The judgment does not mean that the regulations are automatically invalid. The Public Law Project said it has invited the court to make an order that they do not come in to force.
A spokeswoman for the Ministry of Justice said it will appeal the judgment. Its position has been that in order to benefit from legal aid a person should have a strong connection to the UK.
Law Society president Andrew Caplen said: 'We have opposed the residence test throughout. It is discriminatory and it would prevent people who legitimately meet the test from getting legal aid, because they struggle to meet the evidence requirements. We also shared concerns that such a test was not within the contemplation of parliament when it passed the Legal Aid, Sentencing and Punishment of Offenders Act. We are delighted that the High Court has required the government to think again.'
Shadow justice minister Andy Slaughter said: ‘David Cameron’s residence test would unfairly penalise the vulnerable, which is why we voted against it last week. We welcome the court’s judgment and hope that the government move quickly to drop these unlawful measures.'
The full judgment is here.