Three senior UK High Court judges have unanimously decided that proposed introduction of a residency test for legal aid applications is both “unlawful” and “discriminatory”. On 15 July 2014, the Queen’s Bench section of the High Court ruled on the draft regulations to amend the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) following an application by the Public Law Project. The proposed regulation would introduce a residency test for applications to the UK’s legal aid programme which would require that applicants be lawfully resident in the UK for at least 12 months.
The reforms were introduced by Secretary for Justice, Chris Grayling and the Commons had already approved the residence test. Peers were due to vote on the order but it has since been withdrawn in light of the judgment. The Government reasoning for introducing the test was to ensure that legal aid could only be accessed by those with a “strong connection” to the UK or those who pay UK taxes. It was a costs-saving measure in order to reduce expenditure on legal aid.
The residency test has been criticised since its proposal by both NGOs and government committees who claimed that it would have a disproportionate effect on vulnerable children’s access to legal aid and representation. The House of Commons and Lords' Joint Committee on Human Rights has criticised the reforms as denying children their human rights and would breach the UK’s obligations under the convention on the rights of the child. The Public Law Project sought to challenge the regulation, claiming that individuals with meritorious cases would be excluded from legal aid under the new test.
According to the Court, one of the goals of the LASPO Act was to prioritise legal aid for those cases in the greatest need. The proposed regulation was not compatible with this spirit of the primary legislation. The Court held that the regulations could not be enacted by means of secondary legislation. Lord Moses held that “no one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need”. It also held that is would not be legitimate to discriminate against non-residents purely for the purposes for saving state money. The proposed residence test discriminated unlawfully between cases of equal need.
There is still a chance that the residence test could eventually pass as the judicial review only examined the lawfulness of secondary legislation. A spokesperson for the Ministry of Justice has said that the Government intends to appeal the decision.
Click here to read a summary of the judgment, R (on the application of the Pubic Law Project) v The Secretary of State for Justice [2014] EWHC 2365 (Admin).