Supreme Court begins hearing challenge to civil legal aid residence test

A seven-justice panel of the Supreme Court has begun hearing a challenge to the Government’s proposed civil legal aid residence test.

The central issue in R (on the application of The Public Law Project) v Lord Chancellor is whether the test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is:

1. ultra vires the enabling statute; and

2. unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

The background to the case is the entry into force of the civil legal aid reforms made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Ministry of Justice decided to introduce a residence test for civil legal aid via secondary legislation.

If approved by Parliament, this would restrict civil legal aid to persons who are lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time of the application for civil legal aid, and have resided lawfully for a continuous period of at least 12 months (with certain exceptions).

The Divisional Court held that introduction of the residence test was ultra vires and unjustifiably discriminatory. The Court of Appeal overturned that decision in October 2015 and the Public Law Project is seeking to challenge that ruling.

The Law Society and the Office of the Children’s Commissioner have both intervened in the case.

The panel hearing the case over the next two days comprises Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson.