A seven justice Supreme Court has ruled that the Ministry of Justice’s decision to introduce a residence test for certain categories of civil legal aid through the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 using a Henry VIII clause in the governing Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is unlawful. The effect of the residence test would have been to exclude from the scope of legal aid, on the grounds of residence (subject to an exceptional cases regime), those who would otherwise passed the applicable means and merits tests for legal aid, in categories of case in which legal aid would otherwise have been available to them.
The appeal brought by the Public Law Project against the decision of the Court of Appeal to uphold the residence test raised two issues. The first issue was whether the proposed residence test, which was to be introduced through secondary legislation, was ultra vires the Henry VIII clause in the enabling LASPO statute. The second issue was whether the residence test unjustifiably discriminated against those it excluded from civil legal aid on grounds of residence so as to be in breach of the common law and Articles 6 and 14 of the ECHR. The Supreme Court took the unusual step of hearing argument on issue 1 before announcing that it was allowing the appeal on that basis. The Court indicated that it did not consider it necessary to hear argument on issue 2.
Full written reasons for the decision will follow in due course.
Michael Fordham QC, Ben Jaffey and Naina Patel acted for the Appellant, instructed by Bindmans LLP.
James Eadie QC, Simon Pritchard and David Lowe acted for the Respondent, instructed by the Government Legal Department.
Dinah Rose QC and Iain Steele acted for the Law Society intervening.