Government suffers legal aid setback after High Court declares ‘residency test’ unlawful

The introduction of a ‘residency test’ for civil legal aid would be “discriminatory” and “unlawful”, the High Court has ruled.

The House of Commons approved the test proposed by the Lord Chancellor Chris Grayling last week. 

The court said, however, that Grayling had acted beyond his powers by attempting to bring about legislation that would have prevented anyone who had been in the UK for less than a year from receiving legal aid.

A specially convened three-judge court declared the legislation unlawful (see ruling). The ruling means that the test cannot be enacted by means of secondary legislation.

The court held that the test was unconnected with need and would deny legal aid in meritorious cases of highest priority need to those who by definition are unable to pay for advice and representation.

The test was also deemed to be unjustifiably discriminatory and restated the principle of equality before the law. “It is and was beyond question that the introduction of such a test is discriminatory,” the ruling said.

Lord Justice Moses, who chaired the judicial bench, said Grayling had  “not disputed” that the test was discriminatory.

The ruling was critical of the minister’s behaviour, stating: “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 Daily Telegraph]”.

The judge continued: “The United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs.”

The ruling was welcomed by Bindmans partner John Halford, instructed for the claimant the Public Law Project, who 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 Ministry of Justice plans to appeal the ruling.

The legal line-up

For the claimant Public Law Project

Blackstone Chambers’ Michael Fordham QC, Ben Jaffey and Naina Patel and Doughty Street Chambers’ Alison Pickup, instructed by Bindmans partner John Halford

For the defendant the Secretary of State for Justice

Blackstone Chambers’ James Eadie QC, Fountain Court’s Patrick Goodall QC and Blackstone Chambers’ David Lowe instructed by the Treasury Solicitor

For the intervener the Office of the Children’s Commissioner

Doughty Street Chambers’ Paul Bowen QC, Monckton Chambers’ Eric Metcalfe and Doughty Street Chambers’ Catherine Meredith instructed by Freshfields Bruckhaus Deringer