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| UK legal aid residence test to be challenged in supreme court | UK legal aid residence test to be challenged in supreme court |
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| The government’s residence test that deprives those who have lived in the UK for less than 12 months of legal aid faces a major challenge at the supreme court. | The government’s residence test that deprives those who have lived in the UK for less than 12 months of legal aid faces a major challenge at the supreme court. |
| Seven justices will hear arguments on Monday, in a case brought by the Public Law Project (PLP), insisting no minister has the power to impose such discriminatory regulations and that the yet to be implemented residence test is unlawful. | Seven justices will hear arguments on Monday, in a case brought by the Public Law Project (PLP), insisting no minister has the power to impose such discriminatory regulations and that the yet to be implemented residence test is unlawful. |
| The Ministry of Justice (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 Ministry of Justice (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. |
| Related: Legal aid residence test 'discriminatory and unlawful', high court rules | Related: Legal aid residence test 'discriminatory and unlawful', high court rules |
| The case has already 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. | The case has already 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’. | 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. | 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.” | 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 the current justice secretary, Michael 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 remains. | While the current justice secretary, Michael 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 remains. |
| John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents. Legal aid has been available to facilitate this in its current form for over 60 years. | |
| “The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.” | “The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.” |
| Among those whom, it is argued, would have been deprived of legal aid under the residence test are the family of Jean Charles de Menezes, who was shot dead by police, and the destitute children of refugees. A woman who had been sexually harassed by prison guards would have been unable to seek justice, the court will also be told. | Among those whom, it is argued, would have been deprived of legal aid under the residence test are the family of Jean Charles de Menezes, who was shot dead by police, and the destitute children of refugees. A woman who had been sexually harassed by prison guards would have been unable to seek justice, the court will also be told. |
| The children’s commissioner for England has intervened in the litigation in support of the PLP’s appeal, as has the solicitors’ professional body, the Law Society. The courtroom challenge is being led by barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup. | The children’s commissioner for England has intervened in the litigation in support of the PLP’s appeal, as has the solicitors’ professional body, the Law Society. The courtroom challenge is being led by barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup. |
| The case will be decided by seven justices – Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – because of its constitutional importance. | The case will be decided by seven justices – Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – because of its constitutional importance. |
| The supreme court had originally planned to hear the case later this year. It was brought forward following Gove’s indication that he planned to begin applying the residence test from this summer. |