Access to justice campaigners have been celebrating the Divisional Court’s judgement released today that declared the legal aid residence test as being “unauthorised, discriminatory and impossible to justify.” It seems likely that the government will appeal the decision, but LAG argues that the Justice Secretary, Chris Grayling, should step back from this and have a re-think.

 

 

Much informed legal opinion always believed the residence test would at some point be declared illegal by either a UK court or, the European Court of Justice. It is seen as low hanging fruit to be picked off through a challenge under article 6 (the right to a fair trial) and other European human rights law principles. Moreover, Chris Grayling would have been fully aware of this risk, but he probably imagined that he could turn any defeat at the hands of the courts to his political advantage.

 

 

Significantly, the court’s judgement today does not primarily rely on human rights law grounds. Instead, the judges decided that the government’s decision to introduce the test by secondary legislation was illegal, as it contradicts the principles outlined in the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act, which is primary legislation. In other words the defeat does not give the Lord Chancellor the cover of being able to blame the Human Rights Act, which would at least be an acceptable excuse for the euro-sceptic wing of his party.

 

 

The government has been hoisted by its own, and ultimately parliament’s, petard. The particular petard in question, being the stated underlying aim of the reforms of legal aid in the LASPO Act, which was to target legal aid in the future to those most in need. By seeking to introduce further criteria, that is excluding foreigners with otherwise meritorious cases from claiming civil legal aid, the court ruled that the government was going beyond its powers- acting ultra vires- a good old fashioned principle of English and Welsh law!

 

 

LAG and other non-government organisations, concerned with access to justice are calling on the House of Lords to now reject the secondary legislation the Court today has declared illegal, using a procedure know as a fatal motion. Peers will have the opportunity to do so next Monday (21st July) when they consider the amendment to the LASPO Act.  Alternatively, the government could decide to withdraw the secondary legislation pending the hearing of the appeal against today’s judgement- perhaps seeking to introduce re-drafted secondary legislation in the future.

 

 

A better option, we believe, is that the government finds whatever face saving formula it cares to adopt, and quietly drops the proposal. Yes, they will have to endure some short-term embarrassment at the hands of the Labour opposition, but the legal aid residence test is not an issue, though it pains me to say so, which has much resonance beyond the Westminster village. Any other decision risks continuing controversy and clashes with the courts in the run-up to the general election with unpredictable political consequences for the government.

 

Update Wednesday 16th July- The debate on the regret motion in the Lords due to take place on Monday 21st July has now been abandoned due to the court's decision yesterday. Labour's Lord Beecham say's it was "withdrawn pending the outcome of the appeal." We will keep you informed of developments.  

 

 

Steve Hynes