The Supreme Court has today begun hearing a challenge to the lawfulness of government plans to introduce a residence test for civil legal aid eligibility.
Public Law Project (PLP) was granted permission to take its fight to the highest court after the Court of Appeal ruled last year that the government’s plans were lawful. The Law Society and the Office of the Children's Commissioner have intervened in the case.
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.
At the start of a two-day hearing in front of seven Supreme Court justices this morning, Michael Fordham QC, for PLP, said the residence test ‘in substance… will exclude recent migrants and irregular migrants’.
Likening the government's plans to Tudor-era laws allowing the monarch to legislate by proclamation, Fordham said: ‘There’s a Henry VIII power to redesign scope. There is no power to expand the purpose of scope.’
The case, R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent), is being heard by Supreme Court president Lord Neuberger (pictured), Lord Hughes, Lord Reed, Lady Hale, Lord Mance, Lord Carnwath and Lord Toulson.
Fordham told the court that the principle of legality ‘does not permit you to discriminate’.
‘This is a context where the constitutional value of equal protection of law arises. You can differentiate but you cannot discriminate,’ he added. ‘The principle of legality does not get to stage two of justification.’
5:30pm update: In an unusually swift decision, the Supreme Court this evening granted the appeal on the grounds that the proposed residence test in the Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires the enabling statute.
John Halford, of London firm Bindmans, told the Gazette he could not ever think of the Supreme Court 'allowing an appeal on the spot like this. It’s totally unprecedented'.
The court was scheduled to hear arguments tomorrow on whether the residence test breaches common law principles of equality and the Human Rights Act on discrimination. The Gazette understands that the government will decide later today on whether to return to court.