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The Supreme Court’s rejection of the legal aid residence test is a victory for the rule of law
Two of the ‘top eight’ principles that make up the rule of law in Lord Bingham’s well-known book are that the laws of the land must apply equally to all and that the state must provide the means of resolving genuine disputes without prohibitive cost. Although they may seem self-evident, both were sorely tested by government proposals to ration civil legal aid using a residence test.
The test would have meant representation being withheld from those parliament had identified as needing it the most on the basis that they were not physically here or did not have (or could not prove) more than 12 months’ lawful residence. The government readily admitted this would mean withholding legal aid from a far greater proportion of people who were not British, or did not have British origins, compared with those who would pass it (in other words, it discriminated indirectly on grounds of nationality and national origins) but argued that the discrimination was justifiable. More remarkably still, it proposed making the necessary changes to the legal aid scheme by secondary legislation. In other words, entitlements that currently appear on the face of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) would be taken away altogether without full parliamentary debate using Henry VIII powers that parliament had been told would be used simply to keep the Act up to date.
As Legal Action readers will know, the former and current Lord Chancellors indicated their determination to press ahead with these changes despite huge opposition at the consultation stage and criticism from no less than four parliamentary committees. This prompted the Public Law Project (PLP), a charity whose courageousness in challenging the government is out of all proportion to its size, to instruct my firm to seek judicial review of the proposals.
What followed was part litigation, part rollercoaster ride. A three-judge Divisional Court led by Lord Justice Moses gave a damning judgment ([2014] EWHC 2365 (Admin)) against the residence test, holding that the draft statutory instrument to be used to introduce it was ultra vires and that the discriminatory features were unjustifiable, whether tested against the Human Rights Act 1998 framework or common law principles of equal treatment. Importantly, the court found that legal aid was not analogous to a welfare benefit and so withholding it on a discriminatory basis called for the strictest scrutiny. By the time of the Divisional Court’s judgment, the draft statutory instrument had been approved by the House of Commons and would have become law days later unless the House of Lords had blocked it with an extremely rare ‘fatal motion’. But thanks to the judgment, it was withdrawn before the Lords debate. The government then appealed the Divisional Court’s order and, giving a far shorter judgment, the Court of Appeal allowed that appeal last November ([2015] EWCA Civ 1193). Undaunted, PLP pressed on to the Supreme Court, which, without even being asked, expedited the appeal on learning that the government planned to begin withholding legal aid on the basis of the test from the summer.
Many have noted that the test was one of Chris Grayling’s ideas and would not be the first to be sensibly abandoned by his successor.
So it came about that a hearing was arranged before a specially convened seven-judge court on 18 and 19 April to consider the test’s legality (UKSC 2015/0255). But there was one more dramatic turn of events to come that no one had anticipated. Just after 4 pm on the first day of the hearing, Lord Neuberger indicated that he and his fellow justices wanted to confer for a few moments, left the courtroom, and returned 10 minutes later to announce that they would allow the appeal on the basis that, as the Divisional Court had thought, the residence test was ultra vires. In summary, this was because the services set out in LASPO Sch 1 Pt 1 were prioritised and listed there on the basis of need. Any modification by statutory instrument had to be need-driven too. There is no ministerial power to modify LASPO for the sorts of reasons given by the then-Lord Chancellor Chris Grayling when he was questioned by the Joint Committee on Human Rights on 26 November 2013 (‘I am treating people differently because [either] they are from this country and established in this country or they are not’), or by his colleague, the Parliamentary Under-Secretary of State for Justice, Shailesh Vara, in the House of Commons on 18 March 2014 (‘for the residence test it is important that they are our people’).
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The judgment will follow in a few weeks. Whether the discrimination arguments will ever need to be reheard remains to be seen; they remain available for deployment if the residence test resurfaces in primary legislation. But many commentators have already noted that the test was one of Chris Grayling’s ideas and it would not be the first to be sensibly abandoned by his successor, Michael Gove. It is not as if the test is needed to save money. In fact, civil servants were unable to put any figure on cost savings and there was powerful evidence of significant knock-on costs for other government bodies.
For now, thanks to the Supreme Court, legal aid for the highest-priority cases remains accessible to all regardless of nationality, origin and place of residence. Much about legal aid has changed over the past 60 years, little of which has been positive. However, thanks to PLP and the court, we still have a scheme that, despite its shortcomings, exists to underwrite the most fundamental values in our legal system: that everyone living here must obey the law and, in return, can expect to be equally protected by it. The residence test was a wrecking ball swung at those values. The response from the seven Supreme Court justices was to rise collectively and stop it in mid-air. Lord Bingham would have approved.

About the author(s)

Description: John Halford
John Halford is a partner at Bindmans LLP. He acted for Public Law Project in R (Public Law Project) v Lord Chancellor [2016] UKSC 39.