Tag Archive | "John Halford"

Discriminatory residence test for legal aid summarily thrown out


Our blog on Monday said that the Supreme Court would begin hearing arguments in a case challenging the government’s Legal Aid residence test that day. Remarkably by Monday evening the case was resolved.

The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal halfway through a two-day hearing. The bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The government had been seeking to introduce the residence test via secondary legislation. The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which brought the case, said that this is outside the government’s powers and also discriminatory under human rights laws.

As reported in the ‘Gazette’ a brief statement by the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

On Tuesday the court confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.

Law Society chief executive Catherine Dixon said: “This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.

“The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.”

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.” Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.

Such a swift ruling is a humiliating setback for the MoJ. Reversals were a regular matter for the previous unlamented justice secretary Grayling, but Gove has had the sense to abandon many unpopular measures introduced by his predecessor. He has blotted his copybook by allying himself with this now thrown out policy. He intended to proceed with plans to introduce the scheme this summer.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”

Posted in Civil Liberties, Legal AidComments (0)

Legal aid residence test to be challenged


Today, the Supreme Court will begin hearing arguments in a case challenging the government’s Legal Aid residence test.

The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which is bringing the case, says that this is outside the government’s powers and also discriminatory under human rights laws.

The Ministry of Justice (MoJ) has argued that only those who have an established link to the UK should be entitled to legal aid, which is a scarce and costly resource that must be rationed.

Seven justices will hear arguments in a case which insists that no minister has the power to impose such discriminatory regulations and that the residence test, which has yet to be implemented, is unlawful. The supreme court had originally planned to hear the case later this year, but it has been brought forward following justice secretary Michael Gove’s indication that he planned to begin applying the residence test from this summer.

The case has already been before the courts. In 2014, the high court struck down the regulation on the grounds that the then justice secretary, Chris Grayling, did not have the power to introduce it by means of secondary legislation. It also concluded that the residence test was excessively discriminatory.

In a unanimous decision, three senior judges declared the draft regulations then before parliament could not 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.

The judgment was a severe setback for the then justice secretary, Chris Grayling, and the way he was introducing wide-ranging changes without primary legislation.

However, last November the court of appeal overturned that judgment, concluding that the earlier ruling placed unjustifiable restraints on the government’s ability to control the legal aid budget. Exemptions to the residence test have had to be made for members of the armed forces serving overseas, children under one year old and asylum seekers.

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, is quoted in the ‘Guardian’ as saying: “In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents….The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.”

The ‘Guardian’ also reports that the children’s commissioner for England has intervened in the litigation in support of the PLP’s appeal, as has the solicitors’ professional body, the Law Society.

The case will be decided by seven justices – Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – because of its constitutional importance.

Posted in Civil Liberties, Legal AidComments (0)


Be first to get Legal News

Full Name
Email *
Enter the following to confirm your subscription *
advert

Follow Us on Twitter


Archives

Article Categories

Tags

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