Legal aid residence test thrown out by supreme court

Government attempts to introduce a discriminatory residence test for anyone claiming legal aid have been summarily thrown out in a unanimous supreme court ruling.

Halfway through a two-day hearing, the bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The surprise ruling will prevent the justice secretary, Michael Gove, from proceeding with plans to introduce the scheme this summer. If the MoJ still believes it can push ahead with the proposals, it will have to set out the measures in a bill subject to full debate in parliament.

Judgments from the supreme court in Westminster are invariably reserved and delivered months after any hearing. In this case the justices, led by the president of the supreme court, Lord Neuberger, delivered their decision after a few minutes’ recess at the end of the afternoon.

Such a swift ruling is a humiliating setback for the MoJ. The challenge to the residence test was brought by the Public Law Project (PLP), which argued no minister has the power to impose such discriminatory regulations.

In a brief statement, the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

Welcoming the decision, John Halford, the solicitor from Bindmans law firm who respesented the PLP, said: “The British legal system is rooted in two fundamental principles – that all equally enjoy the protection of our laws and all are accountable to our courts.

“The lord chancellor takes an oath of office to honour these principles but planned to undermine them by withholding legal aid from those who failed his residence test, leaving them unable to enforce legal rights in the most compelling cases.

“Yet today, after minutes of deliberation, seven justices of our highest court held him accountable, ruling he was acting in a legal vacuum and without parliamentary authority. Rationing justice using a residence test was, and always will be, repugnant to British law.”

The MoJ has argued that only those who have an established link to the UK should be entitled to legal aid, which is a scarce and costly resource that must be rationed.

The case has previously divided the courts. In 2014, the high court struck down the regulation on the grounds that the justice secretary, then Chris Grayling, did not have the power to introduce it by means of secondary legislation. It also concluded that the residence test was excessively discriminatory.

However, last November the court of appeal overturned that judgment, concluding that the earlier ruling placed unjustifiable restraints on the government’s ability to control the legal aid budget. Discriminating by place of residence was permissible, the court explained, because it is not a characteristic, such as sex or race, “which is specially protected by the law”.

Exemptions to the residence test have had to be made for members of the armed forces serving overseas, children under one year old and asylum seekers.

In its original 2013 consultation paper, Transforming Legal Aid, which introduced the test, the MoJ argued that “those who do not have a strong connection [to the UK] should not be prioritised for public funding in the same way as those who do have a strong connection. We must ensure that limited resource is targeted appropriately.”

While Gove has abandoned many unpopular measures introduced by his predecessor, such as the ban on sending books to prisoners, the intention of imposing this restriction remained – at least until Monday’s decision.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”