Supreme Court allows appeal over introduction of civil legal aid residence test

The plan by the Ministry of Justice to introduce its controversial civil legal aid residence test through secondary legislation – the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 – was ultra vires the enabling statute, the Supreme Court has ruled.

The decision by a seven-justice panel of the Court to allow the Public Law Project’s appeal in R (on the application of The Public Law Project) v Lord Chancellor was made known at the end of the first day of the hearing. Full written reasons are to be given in due course.

The Supreme Court then asked the parties whether they wished to address the Court on the second ground of the appeal, namely whether the test in the 2014 Order was unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

The Supreme Court said the case had been adjourned while this was considered. “The case may therefore not continue tomorrow.”

If approved by Parliament, the test would restrict civil legal aid to persons who are lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time of the application for civil legal aid, and have resided lawfully for a continuous period of at least 12 months (with certain exceptions).

The Divisional Court held that introduction of the residence test was ultra vires and unjustifiably discriminatory. The Court of Appeal overturned that decision in October 2015 and the Public Law Project sought to challenge that ruling.

The Law Society and the Office of the Children’s Commissioner intervened in the case.

UPDATE: The Supreme Court indicated that it did not consider it necessary to hear argument on the second issue. The hearing in this appeal has therefore concluded.