Supreme Court to give reasons for allowing appeal over legal aid residence test

The Supreme Court will next week give its reasons as to why it concluded that the Ministry of Justice’s introduction of a residence test for civil legal aid via secondary legislation was unlawful.

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).

A seven-justice panel – comprising Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – heard the case of R (on the application of The Public Law Project) v Lord Chancellor – UKSC 2015/0255 on 18 April.

At issue was whether the proposed test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 was:

1. ultra vires the enabling statute and

2. unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

At the end of the hearing the Supreme Court indicated that it was allowing the appeal on the first ground. Having reached that conclusion, it did not consider it necessary to hear argument on issue 2.

The Divisional Court had 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.