Supreme Court hears legal aid residence test challenge

The Supreme Court will today hear an appeal arguing that the government's proposed residence test for civil legal aid is unlawful.

Seven justices will be told that the Lord Chancellor has no power to make regulations withholding legal aid on a discriminatory basis to people who have lived in UK for less than 12 months.

The challenge is brought by the Public Law Project, which contends that the Lord Chancellor's intended residence test, by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 through delegated legislation, is unlawful on grounds of being ultra vires and unjustifiable unequal treatment.

The case has split the lower courts. Last November, the Court of Appeal overturned a specially convened three-judge Divisional Court judgment that found the test was unauthorised by parliament, discriminatory, and impossible to justify.

As well as reaching diametrically opposed decisions on the legal issues in the case, the two courts took different approaches to the evidence they were presented with.

In its 2014 judgment, the Divisional Court analysed dozens of witness statements about the anticipated impact of the test.

The court heard from the lawyers of Jean Charles de Menezes's family, a solicitor assisting a woman with learning disabilities who was imprisoned in a kennel by her husband's family, and another acting for children left destitute as a result of local authority disputes over responsibility.

All of these were identified as people likely to be denied advice and representation in court under the new test, something which the Divisional Court believed parliament could never have contemplated when passing the legislation.

The Court of Appeal judgment discussed none of the evidence, however. The court found that ministers may use secondary legislation to withhold legal aid from particular groups of people on cost-saving grounds alone, regardless of need.

The court also held that legal aid is a welfare benefit and withholding it on discriminatory grounds from some of those who need it was justifiable unless 'manifestly without reasonable foundation'.

The Children's Commissioner for England has intervened in the litigation in support of the appeal, as has the Law Society. The Bar Council has also written directly to the court expressing its concerns about the residence test.

The case will be decided by a seven-justice court because of its constitutional importance. Though the court originally planned for a December hearing, the date was brought forward following Michael Gove's indication that he planned to apply the test from the summer.

The Public Law Project is represented by barristers Michael Fordham QC, Ben Jaffey, and Naina Patel of Blackstone Chambers, Alison Pickup of Doughty Street Chambers, and Bindmans public law specialist John Halford.

'In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents,' said Halford.

'Legal aid has been available to facilitate this in its current form for over 60 years. The Lord Chancellor's proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it.

'We will ask the court to make a definitive ruling that the test is repugnant to British law.'