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Regulations to introduce legal aid residence test are unlawful and discriminatory

Lord Chancellor does not have legal power to introduce such a test

In R (on the application of the Public Law Project) v The Secretary of State for Justice [2014] EWHC 2365 (Admin) the Divisional Court has confirmed that Government proposals to introduce a "residence test" for civil legal aid are unlawful. The thrust of those proposals was to prevent those who could not prove 12 months lawful residence in the UK from accessing the civil legal aid scheme.

The Secretary of State for Justice/Lord Chancellor sought to introduce such a test by regulations which (if approved by Parliament) were expected to come into force in August 2014. The regulations would have excluded many people with meritorious cases under UK law from obtaining legal assistance, regardless of the fact that their claims were otherwise recognised to be of the highest priority. The Public Law Project applied for judicial review of the Lord Chancellor's proposals, asserting that he was seeking to act unlawfully. The Office of the Children's Commissioner for England intervened.

The court held that the Lord Chancellor does not have the legal power to introduce such a test. The court restated long-established principles that regulations made under an Act of Parliament must be consistent with the policy and object of that Act. Ministers can only act within the limit of powers granted to them by Parliament. The Court considered that Parliament's intention in passing the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was to prioritise legal aid in cases of greatest need, and that the proposed residence test was inconsistent with that intention.
In addition, the court also agreed with PLP that the residence test would amount to unlawful discrimination. The Court recognised that in many policy arenas (such as welfare benefits, for example) the state can legitimately restrict assistance to residents of the UK. However, the court held that equality before the law is not a welfare benefit, but a fundamental cornerstone of our system of government.

The court noted that the kinds of cases that would be affected by the proposal were by definition meritorious cases, for people who could not afford to pay, in precisely those areas which had been identified by Parliament as being of the highest priority. The court restated the proud principle that all those who are subject to English law are equal before it, whether they are British nationals or not.

Accordingly, the court held there was no lawful basis for the implementation of a test that would have the effect of advantaging one claimant over another merely on grounds of their country of lawful residence. As Lord Justice Moses confirmed in the lead judgment: 

 '…it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not.' [83]

Jo Hickman, Head of Casework at PLP, 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." 

The Office of the Children's Commissioner made written submissions including a witness statement from the Children's Commissioner outlining the likely impact on children within her remit of the test.

Maggie Atkinson, Children's Commissioner for England, said:

"We decided to intervene in this case because we were seriously concerned about the effect of the residence test on vulnerable children and young people who could not access legal advice or support to secure their rights simply because they could not prove they had been in the UK for 12 months. This would include children fleeing domestic violence or abuse without access to their documents and children who, for reasons entirely beyond their control, had never had their immigration status regularised.

"Children cannot be expected to navigate the legal system without legal advice and assistance and we welcome the court's finding today that the residence test is unlawful and beyond what Parliament intended in protecting some important areas of legal aid in 2012."

Law Society president Andrew Caplen commented:

"We have opposed the residence test throughout. It is discriminatory and it would prevent people who legitimately meet the test from getting legal aid, because they struggle to meet the evidence requirements. We also shared concerns that such a test was not within the contemplation of parliament when it passed the Legal Aid, Sentencing and Punishment of Offenders Act. We are delighted that the High Court has required the government to think again."

The judgment is here.