Twitter

Government’s residence test for legal aid in England and Wales is illegal

R (on the application of Public Law Project) v Lord Chancellor [2016] UKSC 39

The Supreme Court ruled that the government’s draft order which sets out a residence test for civil legal aid funding under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, is ultra vires (outside scope of lawful powers). 
 
The test is that if a person was not lawfully resident in the UK at the time of their legal aid application, or for the last 12 months, they would not be eligible for legal aid.  The test was introduced by secondary legislation.  For the test to be valid, it would have to come within the scope of the powers created by Parliament.
 
The test was challenged by the Public Law Project (PLP) on two grounds, (i) the legislation was illegal and (ii) the test was unjustifiably discriminatory.  PLP argued that the exclusion of a specific group of people based on a characteristic such as residence status, did not fall within the power.  The power concerned limiting the availability of legal aid based on the issue or services involved.  The Supreme Court agreed and declared that the draft order was beyond the powers provided.  The discrimination issue was not required to be considered.
 
Read UK Human Rights blog article here.
 

Tags
Legal Aid