Supreme Court to decide on legal aid ‘residence test’

Next month, the Supreme Court will hear an appeal concerning the government’s proposed residence test for civil legal aid, which would (subject to some exceptions) limit public funding in non-criminal cases to people who can prove they are lawfully resident in the UK and have been lawfully resident for a period of at least 12 months.

This restriction on legal aid would mean that where a person who has recently moved to this country is treated unlawfully – for example by their landlord, the police, the NHS or a local authority – they will have no meaningful access to justice unless they are wealthy enough to pay for lawyers to represent them. The case, brought by legal charity the Public Law Project, will be heard by a seven judge panel of the Supreme Court on 18 and 19 April.

We at Young Legal Aid Lawyers have opposed the introduction of the residence test since it was first proposed by the government in 2013; we believe that access to justice and equality before the law are fundamental rights and that restricting legal aid in this way would fatally undermine those principles.

Public Law Project has rightly described the residence test as an extraordinary attack on access to justice, which “goes to the heart of the proud principle that all those who are subject to English law are equal before it”. Opposition has also come from the Joint Committee on Human Rights, the Labour Party and 145 Treasury Counsel – the government’s own lawyers – who described the residence test as “unconscionable” and “impossible to reconcile with the rule of law”.

Even aside from the ethical arguments against it, the residence test would impose a significant logistical burden on legal aid lawyers to provide evidence about every client’s immigration status and past residence. Many of our clients are vulnerable people with chaotic lives and, even where they were born in this country and have lived here all of their lives, could be cut off from accessing the legal advice and representation which is vital to protecting their rights.

Legal aid in civil proceedings has always been subject to means and merits tests to ensure that the person receiving public funding is financially eligible and that their case is meritorious and would be pursued by a reasonable private-paying individual. The coalition government made drastic cuts through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), which wholly or partially removed from the scope of legal aid areas of law including housing, family, immigration, debt and welfare benefits. However, LASPO did not provide for discrimination on the grounds of nationality or residence.

The stated aims of LASPO were to “target legal aid to those who need it most” and to “make substantial savings to the cost of the scheme”. The former objective is clearly not satisfied by the residence test, as it would inevitably exclude some of those who most need legal aid, while in relation to whether the test could contribute to the latter aim, the High Court noted the “substantial evidence that the extent of the savings is unknown, cannot be assessed and may be illusory”.

The government accepts that the residence test is discriminatory – indeed, that appears to be precisely its purpose – so the question for the Supreme Court will be whether this discrimination on the grounds of nationality can be justified in law. In July 2014, three judges in the High Court unanimously ruled that the residence test amounted to unlawful and unjustifiable discrimination. However, in November 2015, three judges in the Court of Appeal unanimously overturned that ruling, finding that although the test is discriminatory, this was justified as a proportionate measure to achieve the legitimate aim of saving public expenditure.

The court will also have to decide whether the government had the power to introduce the residence test by way of secondary legislation. The question here was whether the primary legislation, LASPO, permitted the Secretary of State for Justice to bring in the residence test through Regulations, which would not be subject to a vote in the House of Commons. Again, the High Court and the Court of Appeal reached different conclusions, with the lower court ruling against the government and the appeal court overturning that judgment.

Following the judgment of the Court of Appeal, David Cameron had indicated that the government would seek to introduce the residence test this summer. However, the decision by the Supreme Court to grant permission to appeal and to list an expedited hearing next month should deter the government from acting to implement the residence test until the highest court in the land has delivered the ultimate verdict on its lawfulness.

We hope the Supreme Court will take this opportunity to affirm that the UK is a country in which everyone is equal before the law and that discrimination will not be tolerated in the context of our fundamental right of access to justice. To paraphrase Martin Luther King, injustice to anyone is a threat to justice for everyone.

Public Law Project has set up a fighting fund to cover the costs of the case. If you would like to contribute to the fighting fund, please click here.

This article previously appeared on Huffington Post here.

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