In years to come, we may all wonder what all the fuss was about, but Tuesday's judgement in R (Public Law Project) v the Secretary of State for Justice has provided some relief and not a little amusement to legal aid practitioners girding themselves for yet another grim landmark in the legal aid story: the residence test.
The test, to recap, is intended to exclude from a number of publicly funded services (including housing) those individuals who are not lawfully resident in the UK, Channel Islands, the Isle of Man or a British Overseas Territory and have not at any time been lawfully resident for a period of 12 consecutive months (unless the individual is less than 12 months old or is a category of asylum claimant).
The MoJ's position on the test was that the government was entitled to implement it by means of delegated legislation (the LASPO Act 2012 (Amendment of Schedule 1) Order 2014), relying in particular on s.9(2)(b) of LASPO ('The Lord Chancellor may by Order vary or omit services' in Part 1 of Schedule 1 of the Act) and s.41(2)(b) (Orders 'may make provision by reference to services provided for a particular class of individual'). Those who find themselves excluded from Part 1 could nevertheless make an application for exceptional funding under s.10 if they could demonstrate a breach of their ECHR or EU rights.
PLP's challenge to the Order was that it was, firstly, outside the powers permitted to the LC under LASPO and secondly, that it was discriminatory.
Moses LJ gave the lead judgement of the Court and reminds us (at para.37) that Para.1 of Sched.1 of LASPO aims to identify those individuals who have the greatest need for civil legal services. No other criterion is to be found in the statute and the LC cannot vary or omit services which depart from this primary objective (para.40).
So here was the first problem for the MoJ: if legal aid was now only to be targeted at those with a 'strong connection with the UK' (Transforming Legal Aid: Next Steps 5/9/13), this was not the express purpose of LASPO. It would therefore be a contradiction to say that those with the greatest need could still be excluded from services because they were not resident in the UK. The statutory provisions on which the MoJ were relying were supplementary to the Act and could not contradict its purpose (e.g. if certain services were no longer needed, they could be omitted, definitions such as domestic violence could be updated and so on).
Moses LJ held that the Order was ultra vires and that the test could not be introduced by secondary legislation.
The Court also had no trouble in finding that the Order was discriminatory and it is worth setting out para.60 in its entirety (if only to explain the title of this post):
- It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP  1 WLR 783 at paragraph 35). The Government has accepted that it will be "easier for UK citizens to satisfy than other nationals" and that it "falls within the ground of national origin as specified in Article 14". Indeed, that is its declared purpose. "We have made it absolutely clear", said the Parliamentary Under-Secretary of State, "that for the residence test it is important that they are our people - that they have some link to this country" (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: "I am treating people differently because they are from this country and established in this country or they are not" (26 November 2013). 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 apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :
"Most right-minded people think it's wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?
And yes, you've guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals" (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).
The question at this point was whether the discrimination was lawful and justified. Again the MoJ's case foundered on the argument that the government was not under a duty to provide legal assistance to those who failed the residence test and that it was akin to a welfare benefit. Following Stec v UK and R (Carson) v SSWP, it was settled law that the allocation of state resources was a matter for Parliament and the government and not the Court.
But having already decided which category of cases reached the required threshold under Schedule 1 to justify taxpayers' subsidy, it was the Court's view that no comparison could be made with those individuals who did not meet the conditions of welfare benefit entitlement. Those who failed the residence test, to repeat, still fell into the category of those in the greatest need under LASPO.
Discrimination could not be justified by reference to cost saving (para.82) or public confidence in the justice system (para.84). As Moses LJ scathingly expresses it: "Feelings of hostility to the alien or foreigner are common...in the context of a provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice."
So whether viewed from the point of view of equal treatment under the common law or Art 14 coupled with Art.6, there was no lawful ground for discriminating between those in the greatest need for legal services under Schedule 1 of LASPO.
The MoJ has quickly indicated its intention to appeal the High Court's decision and the Lords' motion booked for later this month has been cancelled pending the appeal.
The LAA has invested a considerable amount of time in readiness for the test's introduction on 4/8/2014, with online training modules and guidance for practitioners. In this respect, it was important for the Court to highlight one of the more insidious aspects of the test (e.g. at para 30), namely its potential to exclude those who would otherwise pass the test but for the onerous evidential requirements (a dossier of immigration documents, 12 months bank statements to demonstrate continuous residence etc.).
The MoJ conceded that the exceptional funding application form was too unwieldy for all applicants, let alone non-residents, so it is clear that some thought will be required before the residence test re-appears in another guise, whether in primary legislation or otherwise.