The Government’s plans to introduce a residence test for Legal Aid applications has been dealt a fatal blow via a unanimous Supreme Court ruling that described the proposal as “unlawful”.

The full Judgment was handed down by the Supreme Court on 13 July 2016, following the Court allowing an appeal mid-hearing.

A challenge to the proposals, which were to be introduced by way of a statutory instrument, was brought by the Public Law Project (PLP) who argued that the plan to introduce a residence test was outside the powers granted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Before the end of the first day of the planned two-day hearing a unanimous verdict was reached by the Supreme Court and the case was stopped early in a dramatic and unprecedented move. The Court said that it did not require hearing any arguments relating to Discrimination under the Equality Act 2010.

In order to satisfy the Government’s proposed requirements, an individual making a legal aid application would need to be lawfully resident in the UK, or British territory, on the day of the application, and have been resident for a minimum of 12 months. A key argument in the appeal was that this was in breach of common law and the Human Rights Act 1998.

Legal experts welcomed the Supreme Court ruling and commented that it went some way to re-affirming the basic principles behind the legal aid system; this being, that every individual has the right to expert legal advice and adequate representation irrespective of wealth or social background.

The Supreme Court ruled before the end of the first day of argument that the proposed residence test was unlawful because it was ultra vires; ie. beyondthe Government’s legal power or authority. The court’s decision, therefore, upheld the fundamental principle that the Government must act only within the scope of its powers, and furthermore, it highlighted the need for particular scrutiny where it is deemed that equality before the law is under question.

The Supreme Court agreed with the Appellant, PLP, that excluding a certain group of people from being eligible to receive legal aid on the basis of their personal circumstances i.e. their place of residence, was outside of the scope of the Lord Chancellor’s powers within the Act as it had nothing to do with the types of services sought, an individual’s needs for the same or ability to pay, which was the underlying purpose of the restrictions of legal aid initially introduced by LASPO.

This summer’s plans to introduce the Legal Aid Residence Test have subsequently been scrapped by the Government, and a Ministry of Justice spokesman admitted “disappointment” at the decision, and claimed his office would now await the full written judgement to consider.

In relation to the Judgment, the Head of our Leeds Public Law Department, Erica Restall stated as follows:

This is clearly a welcomed decision by the Supreme Court for both clients and providers of legal aid. It seems unconscionable that the Lord Chancellor sought to remove an entire group of individuals from the legal aid system, usually the most vulnerable in our society, purely on the basis of their residency in the UK. This meant that they were left with no form of legal redress in situations which would often have a catastrophic impact on their life and in many cases decision made by the UK public authorities.

We will however have to see how the Government responds to this decision and whether there will be an attempt to introduce these changes via primary legislation.