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| Legal aid residence test 'discriminatory and unlawful', high court rules | Legal aid residence test 'discriminatory and unlawful', high court rules |
| (about 5 hours later) | |
| A government 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 declared the draft regulations now before parliament cannot be enacted by means of secondary legislation. | |
| 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. | 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. |
| 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. | 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 have public support. 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." | |
| Quoting a 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. | |
| John Halford, a solicitor from Bindmans law firm, represented the Public Law Project (PLP), the organisation that brought the judicial review challenge. | 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. | 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. | "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." | "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." | 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." | 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, 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." | 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." |
| Tuesday's high-court judgment 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 the department's legal-aid budget had been underspent by nearly £120m last year. | |
| 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 threshold was set too high and was thus likely to breach human rights. |