Nearly three months after allowing an appeal mid-hearing, the Supreme Court has handed down its reasons for throwing out government plans to introduce a residence test for civil legal aid.
Charity Public Law Project (PLP) was granted permission to take its fight to the UK’s highest court after the Court of Appeal ruled last year that the government’s plans were lawful. The Law Society intervened in the challenge.
PLP argued that the proposed test would be outside the scope of the power granted to the lord chancellor in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to bring forward delegated legislation, and would be unjustifiably discriminatory in its effect.
To satisfy the residence test, almost all claimants 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.
In an unusually swift decision in April, the Supreme Court granted PLP’s appeal on the grounds that the proposed residence test in the LASPO (Amendment of Schedule 1) Order 2014 was ultra vires the enabling statute.
Handing down the full judgment last week, Supreme Court president Lord Neuberger said the relevant part of the draft order did not seek to ‘vary or omit services’ but rather sought 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’.
Neuberger said the exclusion of individuals from the scope of most areas of civil legal aid on the ground they do not satisfy the residence requirements of the proposed order involved a ‘wholly different sort of criterion’ from those embodied in LASPO and articulated in the Ministry of Justice’s 2011 paper, Reform of Legal Aid in England and Wales: The Government Response.
Neuberger said the appeal should be allowed on the first, ultra vires, issue. Lady Hale and lords Mance, Reed, Carnwath, Hughes and Toulson agreed.
The Law Society welcomed ‘this strong defence of the principle that the right to British justice applies to everyone who is subject to the laws of this country’.