This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.

You can find the current article at its original source at http://www.theguardian.com/law/2014/jul/15/legal-aid-high-court-residence-test-discrimination-grayling

The article has changed 4 times. There is an RSS feed of changes available.

Version 0 Version 1
Legal aid residence test 'discriminatory and unlawful', high court rules Legal aid residence test 'discriminatory and unlawful', high court rules
(about 4 hours later)
The government's attempt to introduce a residence test for legal aid has been struck down by the high court on the grounds that it is discriminatory and unlawful.The government's attempt to introduce a residence test for legal aid has been struck down by the high court on the grounds that it is discriminatory and unlawful.
In a damning, unanimous decision, three senior judges have declared that the draft regulations now before parliament cannot be enacted by means of secondary legislation. In a damning unanimous decision, three senior judges have declared that the draft regulations now before parliament cannot be enacted by means of secondary legislation.
They also upheld a complaint on a second ground that it would not be legitimate to discriminate against non-residents solely on the grounds of saving money. They also upheld a complaint on a second ground as part of the judicial review – that it would not be legitimate to discriminate against non-residents solely on the grounds of saving money.
The judgment is a severe setback for the justice secretary, Chris Grayling, and the way he has introduced wide-ranging changes without primary legislation.The judgment is a severe setback for the justice secretary, Chris Grayling, and the way he has introduced wide-ranging changes without primary legislation.
Although the Commons voted in favour of the residence test for legal aid eligibility last week by a margin of 70 votes, peers, who have been more resistant to cuts in legal aid, are due to debate the order next week. The Commons approved the residence test for legal-aid eligibility last week by a margin of 70 votes, but peers, who have been more resistant to cuts in legal aid, are due to vote on the order next week.
Handing down the ruling in his last judgment before he leaves the bench, Lord Justice Moses said: "The Ministry of Justice described Laspo [the act under which the residence test is being introduced] as 'targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds' Handing down the ruling in his last judgment before he leaves the bench, Lord Justice Moses said: "The Ministry of Justice described Laspo [the act under which the residence test is being introduced] as 'targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds'.
"No one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need.""No one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need."
He added: "Within the system provided by Laspo, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs."He added: "Within the system provided by Laspo, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs."
Moses dismissed Grayling's claim that the reforms would command public confidence. The judge said: "In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice."Moses dismissed Grayling's claim that the reforms would command public confidence. The judge said: "In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice."
John Halford, a solicitor from Bindman's law firm, represented the Public Law Project, the organisation which brought the judicial review challenge. Quoting an earlier saying of Lord Scarman, Moses said: "He who is subject to English law is entitled to its protection." The other two judges who gave the decision on Tuesday were Mr Justice Collins and Mr Justice Kay.
He said: "What we need to see now is the response of the government. We would like to hope that the House of Lords will not endorse this unlawfully drafted legislation, especially when it's discriminatory." John Halford, a solicitor from Bindmans law firm, represented the Public Law Project (PLP), the organisation that brought the judicial review challenge.
He said: "What we need to see now is the response of the government. We would like to hope that the House of Lords will not endorse this unlawfully drafted legislation, especially when it's discriminatory.
"Using powers that were never his to exercise, the Lord Chancellor has attempted to refashion the legal-aid scheme into an instrument of discrimination so that many of the cases parliament itself identified as most worthy of support could never be taken.
"The court's judgment on that attempt is emphatic: it is simply unacceptable in a country where all are equal in the eyes of the law. Legal aid is, and must remain, the means to safeguard equality in our courts, regardless of people's origins, nationality or place of residence."
Jo Hickman, head of casework at PLP, said: "We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action."
The Ministry of Justice has argued that only those who have an established link to the UK should be entitled to the benefits of legal aid. A spokesperson said: "We intend to appeal."
Labour's shadow justice minister, the west London MP Andy Slaughter, said: "The Labour party have always maintained that David Cameron's residence test would unfairly penalise the vulnerable, which is why we voted against it last week. We welcome the court's judgment and hope that the government move quickly to drop these unlawful measures."
Phil Shiner, solicitor at Public Interest Lawyers, said: "[This] has confirmed that the government's plan to deny legal aid to claimants other than those who are classed as 'lawfully resident' in the UK for 12 months was unjust and indefensible. Every person is entitled to the equal protection of the law, and their residence history is irrelevant to whether or not they have a deserving case."
The high-court judgment on the residence test is the latest challenge to the Ministry of Justice's cost-cutting policy on legal aid. A recent examination of the Legal Aid Agency's annual report claimed that the department's legal-aid budget was underspent by nearly £120m last year.
Earlier this year, the courts also criticised the MoJ for failing to make sufficient "exceptional-case funding" available for those who needed legal aid. It said that the theshold was set too high and was thus likely to breach human rights.