Legal aid residence test ruled unlawful
In a Supreme Court judgment last month, the government’s proposed residence test for legal aid was declared ultra vires. The case had been brought by the Public Law Project (PLP). Jo Hickman, director of PLP, said she was ‘delighted’ with the decision, which vindicates ‘PLP’s long-stated position as to the lawfulness of the proposed residence test’.
PLP at the 2015 Legal Aid Lawyer of the Year awards (Jo Hickman is second from the left).
PLP had brought a judicial review, which was decided in its favour in the Divisional Court (PLP’s success at this stage contributed to its outstanding achievement award at the 2015 Legal Aid Lawyer of the Year awards). Lord Justice Moses, Mr Justice Collins and Mr Justice Jay found that the residence test was ultra vires of the enabling power in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and discriminatory ( EWHC 2365 (Admin)). The government successfully appealed this decision last year ( EWCA Civ 1193). The Court of Appeal found that although the residence test was discriminatory, this could be reasonably justified as a measure to save public expenditure. It also dismissed the claim that it was ultra vires to introduce the test through secondary legislation.
Both the parties and commentators were surprised by how quickly the Supreme Court found against the government. The case had been listed for two days last month, but the seven justices took less than a day to rule that the test was incompatible with LASPO (see opposite). The possibility remains that the government could choose to implement the test through primary legislation, but this is thought to be unlikely in the near future.
According to Hickman, if the test had been implemented, ‘its impact on access to justice would have been catastrophic’. Many of the legal aid lawyers Legal Action has spoken to argued that the test would have excluded many vulnerable people from access to justice and would have been a bureaucratic nightmare for them to administer. In evidence submitted to the hearing, it had been estimated that in many cases it would have taken between one and two hours of unpaid time for lawyers to establish that their clients met the test.