R (Public Law Project) -v- The Secretary of State for Justice [2014] EWHC 2365 (Admin) 15 July 2014

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 Part 1 Schedule 1 lists those areas of law that remain in scope for legal aid. The Lord Chancellor proposed by the LASPOA 2012 (Amendment of Schedule 1) Order 2104 (‘the Order’) to introduce a residence test. All those who failed the test would be removed from the scope of Part 1 Schedule 1.

Public Law Project (PLP) challenged the lawfulness of the Order. Moses J gave the leading judgment of a three judge court. He explained the proposed residence test as follows:

22. An individual satisfies the residence test if he or she is lawfully resident (expressly defined as meaning that those who require leave to enter or remain must have it) in the United Kingdom, the Channel Islands, the Isle of Man or a British Overseas Territory , and one of three further conditions is also met.

It should be pointed out that, if this test came into force then those who are lawfully resident (in terms of this test) would have to prove that before they could apply for legal aid. This might present immense problems to those who have poor literacy, are homeless, do not have English as their first language etc

Moses J examined the purpose of LASPOA 2012:

40. The statutory provisions, read as whole, demonstrate that that which the Lord Chancellor had publicly and repeatedly avowed, was to be achieved by a process whereby services were identified according to his assessment of where civil legal aid was most needed. No other criterion emerges from analysis of the statutory provisions. The power to add, vary or omit services under s.9 as supplemented by s.41 is to serve and promote the object of the statute. The secondary legislation provides an opportunity for the Lord Chancellor to add, vary or omit those cases when, from time to time, he judges that a greater need has arisen or a lesser need has emerged for distribution of legal aid. The power cannot be construed in a way which widens the purposes of the Act or departs from or varies its primary objective…

He continued:

42. The proposal to introduce a criterion of residence strikes a discordant note. Whereas there had hitherto been unanimity in the expressions of the purposes of the statute and the power conferred to further its purpose, the residence test introduces a criterion which has nothing to do with need.

He then examined the purpose of the residence test:

43. There is no dispute as to the purpose of the introduction of the residence test. It is designed to ensure that those on whom civil legal aid is conferred “have a strong connection with the UK” (this is made clear in a number of the documents setting out the reasons for the decision to introduce the secondary legislation); they can be summarised by reference to the document dated 5 September 2013, Transforming Legal Aid: Next Steps:-

“2.11 The purpose of this proposal is to ensure that only individuals with a strong connection to the UK can claim civil legal aid at UK taxpayers’ expense.”

That connection is to be demonstrated by establishing a period of twelve months of previous lawful residence which demonstrates “a meaningful connection with the UK” (paragraph 114, page 85). This test has nothing to do with need or an order of priority of need. It is, entirely, focussed on reducing the cost of legal aid.

He concluded that the statutory instrument was ultra vires:

50. For those reasons, I conclude the instrument is ultra vires and unlawful. I conclude that LASPO does not permit such a criterion to be introduced by secondary legislation. It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred by s.9 as supplemented by s.41.

He moved on to the question of whether the proposed residence test was discriminatory:

60. It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP [2011] 1 WLR 783 at paragraph 35). The Government has accepted that it will be “easier for UK citizens to satisfy than other nationals” and that it “falls within the ground of national origin as specified in Article 14”. Indeed, that is its declared purpose. “We have made it absolutely clear”, said the Parliamentary Under-Secretary of State, “that for the residence test it is important that they are our people – that they have some link to this country” (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: “I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013). Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :

“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?

And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals” (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).

Moses J concluded that the provision of legal assistance was not analogous to the payment of welfare benefits (the latter being accepted in the case law as being a matter for the judgment of Parliament).

He concluded, very forcefully, that the residence test was discriminatory:

84. …Feelings of hostility to the alien or foreigner are common, particularly in relation to the distribution of welfare benefits. But they surely form no part of any justification for discrimination amongst those who, apart from the fact that they are ‘foreign’, would be entitled to legal assistance. Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not. In my judgement, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction. In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.

See: R (Public Law Project) -v- The Secretary of State for Justice Judgment