“Discriminatory” legal aid residence test ruled lawful.

In light of recent news that Michael Gove dispensed with Chris Grayling’s criminal court charges, following calls from the Justice Committee that the charge is incompatible with principles of justice, it is interesting that the Court of Appeal held that Michael Gove’s changes to legal aid, which have also been widely criticised, was lawful. The Court of Appeal held in Public Law Project v The Lord Chancellor and another [2015] EWCA Civ 1193 that the government’s introduction of the ‘residence test’ for legal aid was lawful, overturning a High Court judgment, which found that the introduction of the test was discriminatory and therefore unlawful. To satisfy the residence test, an individual needs to be a lawful resident in the UK, Channel Islands, Isle of Man or a British overseas territory on the day of the application for civil legal aid. Unless, they were under 12 months old, a particular kind of asylum claimant, or involved with the UK armed forces, applicants need to have been a lawful resident for 12-months.

Last year, Lord Justice Moses damned the residence test stating: “within the system provided by LASPO, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs.” But recently, Lord Justice Laws gave the majority view, “I have said that the saving of public funds, and to that end the residence test, lie properly within the objective of LASPO ss.9 (2)(b) and 41(2)(b) to enhance the efficiency of civil legal aid.” The fact that the residency test is discriminatory now seems to be deemed acceptable in light of the government’s need to save money. This ruling indicates that the government may now use secondary legislation to discriminate and withhold legal aid on grounds of saving cost. It also suggests that legal aid is, in effect, a welfare benefit and so, withholding it is justifiable unless it is ‘manifestly without reasonable foundation’.

This case highlights the contrasting views within the judiciary. It will be interesting to consider the outcome if this case goes to an appeal. The Public Law Project has announced that it is considering asking the Supreme Court to give urgent consideration to an appeal before the test is implemented.