Legal aid residence test blocked

Posted: 18th July 2016

supreme courtIn an important decision which set parameters on the exercise of executive power by government ministers, the Supreme Court blocked the Lord Chancellor’s plans to use subordinate legislation to introduce a residence test for the receipt of legal aid.

The Lord Chancellor proposed restricting legal aid to those who had been lawfully resident in the UK, or Crown dependencies or overseas British territories, for a continuous period of 12 months prior to the making of an application. Amendments needed to be made to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and draft regulations designed to achieve that objective were laid before Parliament.

In a pre-emptive move, a law firm succeeded in a High Court challenge to the Lord Chancellor’s plans before the regulations had completed their passage through Parliament. The Lord Chancellor’s challenge to that decision was later upheld by the Court of Appeal, but not before the draft regulations were withdrawn.

In upholding the law firm’s appeal, the Supreme Court found that the Lord Chancellor had no power to introduce the residence test by means of subordinate legislation. The exclusion of a specific group of people from the right to receive legal aid – on the grounds of personal circumstances or characteristics which had nothing to do with the nature of the issues or services involved, or the individual’s need or ability to pay for such services – fell outside the power conferred on the Lord Chancellor by the Act.

In the circumstances, the Supreme Court found it unnecessary to consider further arguments that the proposed residence test would be unjustifiably discriminatory in its effect.