In Public Law Project v The Lord Chancellor & Anor  EWCA Civ 1193, the Court of Appeal reversed the decision of the High Court that the proposed residence test for civil legal aid would be unlawful. It found that such a test was within the Lord Chancellor’s powers and not unjustifiably discriminatory.
In a short and much narrower judgment than that of the High Court (which considered in detail the practical difficulties of access to legal aid the test would create), Laws LJ (with whom Kitchin and Christopher Clarke LJJ agreed) confined himself to considering whether the residence test was ultra vires LASPO, and whether its effects amounted to unlawful discrimination.
Laws LJ held that Part 1 of Schedule 1 of LASPO lists categories of law where the need for legal aid is pressing. But that does not mean that it is only open to the Lord Chancellor to restrict access to legal aid on the basis of lesser need. LASPO’s purpose is also to restrict legal aid on costs grounds, and it is open to the Lord Chancellor to remove access to the scheme on that basis. The objective of saving funds and making legal aid work more efficiently are objectives of LASPO. The residence test is within the scope of such a strategy, and within the scope of the powers permitted to the Lord Chancellor. s9(2)(b) read with s41(2)(b) of LASPO permits the Lord Chancellor to omit services for classes of individuals, and that is what the residence test does. It is not outside the powers granted by the Act.
On the issue of discrimination, it was common ground that the test is discriminatory; the question is whether it is justified. The saving of public funds is a legitimate aim, and the test is a proportionate means of achieving it. There is a distinction to be drawn between the duty of the State to ensure fair and impartial justice and a duty to fund legal representation. There is a wide discretion to decide what litigation is to be supported by public money, which is essentially a political question, and the restriction on it due to the residence test is not manifestly without reasonable foundation. Any requirement of European or human rights law for access to legal aid is met by exceptional funding under s10 LASPO.
The Public Law Project’s solicitors, Bindmans LLP, have issued a statement regretting the ignoring of evidence of the practical difficulties the test would cause. They will seek leave to appeal to the Supreme Court.
It is slightly strange that Laws LJ focussed on the statutory purpose of LASPO as being in part about controlling and reducing the cost of the scheme, and how the residence test was a lawful part of that strategy. Similarly, on discrimination, he described the legitimate aim sought as being the saving of costs.
But the residence test, according to the original consultation and impact assessment, was never about cost. It was projected to save very little. The original justification for the test – scarcely touched on by the Court of Appeal – was public confidence in the operation of the legal aid scheme. Moses LJ, in the High Court, described that as amounting to “little more than reliance on public prejudice”. Laws LJ disagreed, considering it possible for reasonable people to disagree about the merits of the test. But he didn’t address at all whether that was a legitimate aim, whether the test was a proportionate means of achieving it, or whether it fell within the statutory purpose of LASPO.
Unless the Supreme Court is persuaded to deal with any appeal quickly, the Lord Chancellor now has the power to introduce a residence test. Having the power is not, of course, the same as exercising it. The new Lord Chancellor has struck a noticeably more thoughtful and liberal tone than his predecessor. It is not too late for him to consider whether the many injustices that would result from the residence test – for those caught by it, and for those not caught who can’t prove entitlement – require it to be added to the lengthening list of Grayling measures quietly abandoned.