The Government’s plans to further reduce the legal aid budget suffered a serious setback this week, with a ruling by the High Court that the proposed legislation is discriminatory and unlawful.
The Government wish to introduce a residency requirement, that any claimant must be classed as “lawfully resident” in the UK for a period of 12 months, save for some special cases and for children under the age of 1. The measures have already been approved by the Commons and will be voted on next week by the Peers. However, the matter was brought to the attention of the High Court by the Pubic Law Project, who sought Judicial Review.
The plan was for the new test to be introduced as an amendment to LASPO, which came into force on 1 April 2013.
With LASPO, the government has stated the aim to focus public funding on those in the most need. Schedule 1 sets out the four key criteria for inclusion: the importance of the issues, the litigant’s ability to present their own case, the availability of other sources of funding and the availability of other sources of resolution.
The High Court ruled that, by introducing a residency test, the government is trying to introduce a new focus for the legislation: that of reducing costs. Many of those cases which would be excluded on the basis of residency are also those cases where need is greatest. The residence test discriminates between cases of equal need based solely on the basis of saving money. Therefore, it is considered that the introduction of a residency test would contradict the stated aim of focusing public funding on those most in need. This level of change cannot be enacted by secondary legislation but would require further primary legislation.
This judgment (see here for full version) supports the principle established by Lord Scarman (in ex parte Khawaja ) that:
“every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection.”