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Supreme Court sketch, R V Jogee sketch, www.isobelwilliams.blogspot.co.uk

The Court of Appeal has unanimously ruled that the government’s proposed residence test for civil legal aid is lawful, overturning a judgment by the High Court last year which found the measure to be discriminatory and unlawful. The test, if implemented, will restrict public funding for legal representation in civil cases to individuals who can prove that they are lawfully resident in the UK and have been so for a 12 month period at some time in the past.

Delivering the judgment of the court, Lord Justice Laws held that the introduction of the residence test by way of secondary legislation was lawful and that, although the test was discriminatory, this was justified as a proportionate measure to achieve the legitimate aim of saving public expenditure.

The ultra vires argument
The High Court had held that the use of secondary legislation to introduce the residence test was ultra vires, or beyond the legal authority conferred by the primary statute, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This was because the underlying purpose of LASPO was the allocation of legal aid on the basis of need. Accordingly, in the High Court’s view this did not permit the government to remove legal aid from particular classes of individual except on the basis of need.

The Court of Appeal identified section 41(2)(b) of LASPO as crucial. That section provides that orders, regulations and directions may be made by reference to ‘services provided for a particular class or individual’. The High Court held that ‘the identification of a particular class of person is merely designed to identify those with a need judged to have priority’. Examples of such a class may be children or victims of domestic violence.

The Lord Chancellor argued that, when introducing LASPO, the government had ‘emphasise[d] the saving of public money just as clearly as the fulfilment of need for civil legal aid’ and that the statutory language was ‘plainly broad enough to encompass a provision such as the residence test’. Responding to the appeal, the Public Law Project supported the reasoning of the High Court that the provision of civil legal aid under LASPO by reference to criteria based on need.

This ‘narrow’ reading of the purpose of the enabling statute was not supported by the Court of Appeal. In Lord Justice Laws’ judgment, section 41(2)(b) of the LASPO is ‘clearly wide enough to encompass characteristics of a class which to a rational mind are material to the heightened efficiency of civil legal aid: an objective which plainly includes the saving of public funds’. In other words legal aid may be allocated (and withdrawn) on purely economic grounds.

In cases where a refusal of legal aid would lead to a breach of rights protected by the European Convention on Human Rights (ECHR) the judges said that this would be addressed by the exceptional funding scheme under section 10 of LASPO – a surprising conclusion given the Court of Appeal’s exposure of the failings of that scheme earlier this year.

The discrimination argument
The Court of Appeal recognised that it is ‘common ground that the residence test is discriminatory’ within the meaning of ECHR Article 14 (the prohibition on discrimination) read with Article 6 (the right to a fair trial). The question for the court was therefore such discrimination could be justified as a proportionate measure for the achievement of a legitimate aim, namely saving public expenditure.

On this, the judgment of the High Court had been clear: ‘the possibility of saving expense is not an aim which can be legitimately relied upon to justify discrimination’. For the Court of Appeal, however, the limitation of public funding for civil legal cases to people resident in the United Kingdom ‘is essentially a political question, concerned as it is with the strategic distribution of scarce public resources’. In those circumstances, the law should be expected to ‘allow a very considerable margin of discretion to the elected arms of government’.

The Court noted that the ‘default position in any discrimination case where the subject-matter is one of broad, or strategic, economic and/or social policy’ is that the test for justification of discrimination is whether a measure is ‘manifestly without reasonable foundation’. However, a more vigorous and intrusive approach will be adopted:

‘where either the grounds of discrimination or the context of the case call 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 is no coincidence that these two categories are specially protected.’ [emphasis added]

Lord Justice Laws continued:

‘The principle that every individual is to be treated as an end and not a means demands, if it is to mean anything in a society lively with dispute and confrontation (as most societies are), a justice system which presumes in favour of liberty and insists on high standards of fairness applicable in every case.’

Lord Justice Laws gave detailed consideration in his judgment to the standard of review to be applied. The judgment acknowledged that ‘certain grounds for discrimination – race, sex and so forth – will be especially hard to justify’ and that some classes of case – ‘most notably the doing of justice and the presumption of individual liberty’ – will be examined with ‘particular vigour’.

Nevertheless the court found that ‘there is 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 the courts, and on the other a putative duty to fund legal representation.’ The court ultimately concluded that ‘the test for justification in this discrimination case is whether the residence test is “manifestly without reasonable foundation”. Plainly, that test is not met.’

It is difficult to square the analysis with the conclusion. The introduction of a residence test for civil legal aid inevitably offends against the notion that every individual has equal value and should therefore have equal access to justice.

Equality before the law
In July last year, I wrote an article for The Justice Gap welcoming the decision by the High Court and offering my view that an appeal by the then-Lord Chancellor, Chris Grayling, would be highly unlikely to succeed. Regrettably, this has been proved wrong. Perhaps because the Court of Appeal has developed a reputation for judicial conservatism, this case was always destined to be determined by the Supreme Court.

The residence test would mean that where a person who has recently moved to this country is treated unlawfully (for example by the police, their landlord, the NHS or a local authority) they will have no meaningful access to justice unless they are wealthy enough to pay for lawyers to represent them. It is now common ground that this is discriminatory, and I would argue unethical and unjust, but it is not – according to the Court of Appeal – unlawful.

In his judgment in the High Court, Lord Justice Moses said:

‘Feelings of hostility to the alien or foreigner are common, particularly in relation to the distribution of welfare benefits. But they surely form no part of any justification for discrimination amongst those who, apart from the fact that they are “foreign”, would be entitled to legal assistance. Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not. In my judgment, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction. In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.’

In a civilised country which respects the rule of law – including, crucially, the principle of equality before the law irrespective of race, gender, religion, sexuality, disability or nationality – there should be no place for such a discriminatory measure. In 2014, three judges in the High Court unanimously agreed; yesterday, three judges in the Court of Appeal unanimously disagreed. Public Law Project has said it will seek permission to appeal to the Supreme Court, so it will now be for the highest court in the land to resolve the issue.