Divisional Court rules introduction of legal aid residence test unlawful

The Government’s proposed introduction by secondary legislation of a ‘residence test’ for civil legal aid eligibility is ultra vires and unlawful, a three-judge Divisional Court has held.

The judicial review challenge to the new test – to be introduced through the Legal Aid Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 – was brought by the Public Law Project, a charity that promotes access to justice.

All those who fail the test will be, subject to exceptions, removed from the scope of Part 1 of LASPO (which identifies those cases most in need of public funding).

They remain eligible however if they fall within s. 10 of the Act, which requires civil legal aid to be made available where a failure to do so would in any individual case breach, or amount to a substantial interference with, the procedural safeguards guaranteed by Article 6 of the European Convention on Human Rights, and has discretion to do so where a risk of such breach arises.

The House of Commons last week voted to approve the draft order containing the residence test. A vote in the House of Lords vote is expected to take place next week (21 July).

In The Public Law Project, R (On the Application Of) v The Secretary of State for Justice the Office of the Children's Commissioner [2014] EWHC 2365 (Admin) the claimant charity argued that the proposed amendment to the 2012 Act was unlawful in two respects:

• The Lord Chancellor had no power to introduce such an amendment by way of delegated legislation; and
• Such a discriminatory provision was contrary to common law or breached Article 6 read with Article 14 of the Convention.

Giving the unanimous judgment of the court, Lord Justice Moses said: “No one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need. Non-residents who fall within those cases identified as being of greatest need are not in any less need by reason of their status as non-residents.

“The purpose of introducing a residence test is not to identify those cases of the greatest need, but rather to restrict the distribution of legal aid to those who have the closest connection with the United Kingdom.”

Ruling that the proposed amendment was unlawful, Lord Justice Moses concluded that LASPO did not permit the test to be introduced by secondary legislation. “It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred by s.9 as supplemented by s.41.”

The judge highlighted how the declared purpose of the test was discriminatory. In relation to this issue, the Public Law Project argued the Lord Chancellor had unlawfully discriminated between those whose cases fell within Schedule 1 of the Act.

The judge said the real question was whether, once the UK had chosen to provide legal assistance in cases where it was under no duty to do so, it might refuse such assistance to those who would otherwise qualify save for the fact that they did not meet a residence test.

What must be justified was not the denial of legal aid but discrimination in cases of equal need between those who were eligible and those who were not.

The judge pointed out that the Lord Chancellor had not chosen to restrict legal assistance to cases falling within s.10. “He has chosen to go further and must, therefore, act lawfully in the manner in which he makes his choices.”

The consequence of the residence test was to hamper a non-resident claimant, when compared to a resident claimant, in seeking to vindicate domestic rights which domestic public authorities were under a domestic legal obligation to secure.

Lord Justice Moses rejected the Lord Chancellor’s argument that the provision of legal assistance was analogous to the distribution of welfare benefits. The mere saving of cost cannot justify discrimination, he added.

“The vital distinction in this case lies between the making of a choice by the State as to whether to provide legal assistance in some cases, and discrimination between those eligible once a choice to provide legal assistance in those cases has been made. Within the system provided in Schedule 1 of LASPO, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs.”

Lord Justice Moses also rejected the Lord Chancellor’s attempt to justify the changes by reference to public confidence in the legal aid system.

“The Lord Chancellor had previously justified the restrictions on legal assistance by reference to commanding public confidence and ensuring credibility by targeting those people and cases where ‘funding is most needed’,” the judge said.

“In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”

Jo Hickman of the Public Law Project said: “We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action.” 

Bindmans partner John Halford, who was part of the legal team advising the charity, added: “Using powers that were never his to exercise, the Lord Chancellor has attempted to refashion the legal aid scheme into an instrument of discrimination so that many of the cases Parliament itself identified as most worthy of support could never be taken.

“The Court’s judgment on that attempt is emphatic: it is simply unacceptable in a country where all are equal in the eyes of the law. Legal aid is, and must remain, the means to safeguard equality in our courts, regardless of people’s origins, nationality or place of residence.”

The Ministry of Justice is expected to appeal the judgment.