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The Divisional Court has ruled that the decision to introduce a residence test for civil legal aid, now formulated in the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014, is unlawful. The effect of the test would have been to exclude those with a better than fifty-fifty chance of establishing a claim to legal aid, the subject of matter of which is judged as having the highest priority need for legal assistance, on the grounds that they lack a sufficiently close connection with the country to whose laws they are subject.

Firstly, Lord Justice Moses considered that the criteria for the provision of legal aid adopted by the statute are limited to “greatest need” and that the proposed residence test introduced a criterion which “has nothing to do with need.” As such, the proposed amendments were outwith with powers to make delegated legislation conferred by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Secondly, Lord Justice Moses held that the test was unlawful for its discriminatory nature. Rejecting the analogy with social welfare benefits advanced by the Government, Lord Justice Moses determined that the context “is the vindication of legal rights”, and the mere fact that there can be restriction of legal aid provision does not justify discrimination on grounds of residence, nor would the mere saving of cost. Furthermore, in the context of a discriminatory provision relating to legal assistance, invoking public confidence “amounts to little more than reliance on public prejudice.” Where the government had already determined that certain categories of case demonstrate such a high priority of need as to merit litigation supported by taxpayers subsidy, the introduction of a discriminatory criterion could not be justified. This was so whether the claim was based in equal treatment under the common law, or a breach of Art. 14, read with Art 6.  Mr Justice Collins and Mr Justice Jay agreed.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2365.html 

Michael Fordham QC, Ben Jaffey and Naina Patel acted for the Claimant

James Eadie QC and David Lowe acted for the Defendant

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