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

R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent) Case ID: UKSC 2015/0255

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.

A Ministry of Justice spokesperson said: ‘We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.’

The Supreme Court 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 should stand adjourned while this second ground was considered. In the event, the Supreme Court subsequently indicated that it did not consider it necessary to hear argument on the second issue. As a result, the hearing in this appeal has therefore concluded.

If approved, the test was intended to restrict civil legal aid to persons who were lawfully resident in the UK, Crown Dependencies or British Overseas Territories, at the time of the application for civil legal aid, and had 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.

Reacting to the judgment, John Halford, a partner at Bindmans representing the Public Law Project, said: ‘The British legal system is rooted in two fundamental principles – that all equally enjoy the protection of ours laws and all are accountable to our courts.

‘The Lord Chancellor takes an oath of office to honour these principles, but planned to undermine them by withholding legal aid from those who failed his residence test, leaving them powerless to enforce legal rights in the most compelling cases.

‘Yet today, after minutes of deliberation, seven Justices of our highest court held him accountable, ruling he was acting in a legal vacuum and without Parliamentary authority. They were right to do so – rationing British justice using a residence test is repugnant to British law.’