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.”

Labour leader Jeremy Corbyn has called on the government to initiate an immediate review of cuts to civil legal aid.

The coalition government reduced the scope of civil legal aid through the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) and has committed to a review of the policy by April 2018.

The reforms reduced spending on civil legal aid by £300m a year, but the National Audit Office last year said the wider costs to the public sector had not been factored in because the Ministry of Justice did not anticipate how people would respond to the changes.

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The Bar Pro Bono Unit (BPBU) was established in 1996 to assist mainly civil claimants who could not afford legal fees but were not entitled to legal aid. It receives 90 per cent of its funding from the Bar, barristers’ chambers and individual barristers.

Overall 42 % of solicitors undertook pro bono work in the last twelve months. 49 % of solicitors working in private practice, 63 % of solicitors working in sole practices and 43 % of solicitors working in the largest firms (81+ partners) undertook pro bono work. Read the full story

The court of appeal has ruled that exceptional legal aid funding should be made available for those fighting deportation in difficult immigration cases..

There has been widespread criticism of the way in which the Legal Aid Agency (LAA) resists providing support despite explicit legal provision in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) for funding in “exceptional cases.”
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One of the many malign effects of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was to put paid to the Citizen Advice Bureaux and other legal advice sources. The Act swept away entitlement to state-funded legal advice in family, employment, housing and welfare benefits, clinical negligence, immigration, education and other common civil legal cases.

As a direct result the family courts system is at breaking point due to delays caused by unrepresented litigants and overstretched judges. There has been a surge in the number of “litigants in person” – those who do not have lawyers to argue on their behalf. As many as 650,000 people have been deprived of support by changes to legal aid. Read the full story

Ken Clarke has been a big beast in the Westminster jungle for a long time. Now he has gracefully agreed to leave his post as justice secretary and has accepted demotion to minister without portfolio, with the right to advise on economics. Osborne may not be too pleased about that, particularly as Clarke will still be in the cabinet. Read the full story