Jean-Yves Gilg

Editor, Solicitors Journal

Supreme Court allows legal aid residence test appeal

Supreme Court allows legal aid residence test appeal


Justices find against the government after first day of hearing

The Supreme Court has held that the government's controversial residency test for civil legal aid is unlawful.

In dramatic and speedy fashion, the UK's highest court held that the residency test policy - introduced by Chris Grayling during his time as Lord Chancellor and continued by his successor, Michael Gove - was ultra vires.

Following the entry into force of the civil legal aid reforms made by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, the Ministry of Justice decided to introduce a residence test for civil legal aid via secondary legislation.

The new test would restrict civil legal aid to persons who are lawfully resident in the UK for civil legal aid.

A specially convened three-judge Divisional Court judgment held that introduction of the residence test was ultra vires and unjustifiably discriminatory.

However, the Court of Appeal overturned that decision, finding that ministers may use secondary legislation to withhold legal aid from particular groups of people on cost-saving grounds alone, regardless of need.

The legal challenge brought to the Supreme Court by the Public Law Project contended that the test was both unlawful on grounds of being ultra vires and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

Though the Supreme Court was supposed to hear arguments over two days, the seven-strong panel of justices, led by Lord Neuberger, decided against the government at the end of the first day of submissions.

The parties were asked whether they wished to address the court on the second issue. The case was adjourned while the parties considered this option. 

The court indicated on Tuesday morning that it did not consider it necessary to hear argument on the second issue, concluding the appeal. Full written reasons for the decision are expected to follow.

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.'

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.'

The Public Law Project’s director, Jo Hickman, said: 'We are delighted with this outcome, which so fundamentally vindicates PLP's long-stated position as to the lawfulness of the proposed residence test. Its impact on access to justice would have been catastrophic.

Our thanks to all who offered PLP their support in these proceedings, but particularly to our legal team who worked tirelessly to bring a case founded in the very proudest principles of British justice.'