Public Law Project v Lord Chancellor  EWCA Civ 1193,  MHLO 136
The proposed Legal Aid residence test was lawful (the High Court had been wrong to decide it to be ultra vires and unjustifiably discriminatory). The proposed test is described as follows in the judgment: "To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days). There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
LEGAL AID — Availability — Civil legal services — Qualification criteria for high priority need cases — Secretary of State proposing delegated legislation to introduce residence test for those most in need of legal assistance — Whether proposal ultra vires primary legislation — Whether proposal unlawfully discriminatory — Legal Aid, Sentencing and Punishment of Offenders Act 2012, ss 9(2), 41(2), Sch 1, Pt 1
Regina (Public Law Project) v Lord Chancellor (Office of the Children’s Commissioner intervening)
B;  WLR (D) 480
CA: Laws, Kitchin, Christopher Clarke LJJ: 25 November 2015
The decision of the Lord Chancellor to propose by statutory instrument an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to impose a residence test for those otherwise eligible for civil legal aid under Part 1 of Schedule 1 to the Act was not unlawful or discriminatory.
The Court of Appeal so stated when allowing the appeal of the Lord Chancellor against a decision of the Divisional Court of the Queen’s Bench Division on 15 July 2014  EWHC 2365 (Admin;B to allow a judicial review claim by Public Law Project that a proposed amendment by statutory instrument to the 2012 Act, introducing a residence test for those otherwise eligible for civil legal aid under Part 1 of Schedule 1 to the Act was unlawful and that, in any event, such a discriminatory provision was contrary to common law or breached article 6 read with article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
LAWS LJ said that the vires of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 arose from section 41(2)(b) of the 2012 Act. The expression in section 41(2)(b) referring to “a particular class of individual” was clearly wide enough to encompass characteristics of a class which to a rational mind were material to the heightened efficiency of civil legal aid: an objective which plainly included the saving of public funds. The residence test was well within the scope of such a strategy, and likewise, as it seemed to his Lordship, within the scope of changes permitted to the Lord Chancellor by section 9(2)(b) read (in particular) with section 41(2)(b).
It was common ground that the residence test was discriminatory within the meaning of article 14 read with article 6 of the Convention. The question as whether the residence test could be justified as a proportionate measure for the achievement of the legitimate aim of public expenditure.
The “manifestly without reasonable foundation” test for justification constituted in his Lordship’s judgment the law’s default position in any discrimination case where the subject matter was one of broad, or strategic, economic and/or social policy. It would however be disapplied, and a more vigorous, intrusive approach adopted, where either the grounds of discrimination or the context of the case called for the law’s special protection: the former because of the law’s attribution of value to every individual, the latter because of the law’s special responsibility in certain areas such as access to justice. And it was no coincidence that those two categories were specially protected. The common law’s care for the value of the individual dictated both. The principle that every individual was to be treated as an end and not a means demanded, if it was to mean anything in a society lively with dispute and confrontation (as most societies were), a justice system which presumed in favour of liberty and insisted on high standards of fairness applicable in every case.
It was clear that the claimant could not look to the courts to exercise an intrusive judgment by reference to the grounds of discrimination which were inherent in the 2014 Order. Place of residence—the ground in question—was not a characteristic, such as sex or race, which was specially protected by the law on the footing described. The claimant’s point was the simple one that the context of the case was access to justice. The difficulty, in his Lordship’s judgment, was that there was a profound difference between on the one hand the state’s duty to ensure fair and impartial procedures and to avoid undue legal obstacles to access to the courts, and on the other a putative duty to fund legal representation.
The test for justification in the present discrimination case was whether the residence test was “manifestly without reasonable foundation”. Plainly, that test was not met. The appeal would be allowed.
KITCHIN LJ and CHRISTOPHER CLARKE LJ agreed.
Appearances: James Eadie QC, Patrick Goodall QC and David Lowe (instructed by Treasury Solicitor) for the Lord Chancellor; Michael Fordham QC, Ben Jaffey and Naina Patel (instructed by Bindmans LLP) for the claimant; Paul Bowen QC, Eric Metcalfe and Catherine Meredith (instructed by Freshfields Bruckhaus Deringer LLP) for the Office of the Children’s Commissioner, intervening by written submissions.
Reported by: Alison Sylvester, Barrister.
© 2016. The Incorporated Council of Law Reporting for England and Wales.
Simon Pugh, 'Of residence, reviews and reverses' (Legal Aid Handbook blog, 20/1/16)†. The government aims to introduce the civil Legal Aid residence test by summer 2016.