A specially convened three-judge Divisional Court has today ruled that the legal aid residence test is unlawful
Bindmans solicitors reports that a specially convened three-judge Divisional Court has today ruled that the legal aid residence test is unlawful, discriminatory and impossible to justify.
EIN members can read the judgment here.
According to Bindmans (who were instructed in the case), the Court unanimously found that the Lord Chancellor exceeded his statutory powers when devising the residence test and that it would discriminate against 'foreigners' without justification.
The test case was brought on behalf of the Public Law Project (PLP).
Bindmans quotes today's judgment as stating: "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."
PLP has more on today's judgment here and notes: "The Court agreed with PLP that the Lord Chancellor does not have the legal power to introduce such a test. The Court restated long-established principles that regulations made under an Act of Parliament must be consistent with the policy and object of that Act. Ministers can only act within the limit of powers granted to them by Parliament. The Court considered that Parliament's intention in passing the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was to prioritise legal aid in cases of greatest need, and that the proposed residence test was inconsistent with that intention."
PLP adds that the Court restated the proud principle that all those who are subject to English law are equal before it, whether they are British nationals or not.
Jo Hickman of the Public Law Project said today: "We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action."
John Halford of Bindmans solicitors said: "Using powers that were never his to exercise, the Lord Chancellor has attempted to refashion the legal aid scheme into an instrument of discrimination so that many of the cases Parliament itself identified as most worthy of support could never be taken. The Court’s judgment on that attempt is emphatic: it is simply unacceptable in a country where all are equal in the eyes of the law. Legal aid is, and must remain, the means to safeguard equality in our Courts, regardless of people’s origins, nationality or place of residence."
The Refugee Council's Policy Manager Judith Dennis hailed today's ruling as a triumph for justice and said it sends an important message to politicians: "discriminating against people in order to save money is unacceptable and against the law."
The Ministry of Justice said on its Twitter account that the Government intends to appeal the decision.