The Supreme Court began hearing the residence test appeal on Monday. Most unusually, at the end of day one of a two day hearing, the Court gave its decision – that the test is unlawful because it is outside the powers granted to the Lord Chancellor by LASPO. It’s not yet clear whether the second day will go ahead to consider whether it is also discriminatory. The Court will give reasons in due course.
This is a very welcome result, and our congratulations to the Public Law Project and its representatives for bringing the case. As we said when the draft regulations were first published the test is not only directly and deliberately discriminatory, it would also have the practical effect of barring access to legal aid for many who would be eligible but unable to prove it.
But it’s important to remember that this doesn’t necessarily mean the end of the residence test. There’s clear political will to introduce it, with the Prime Minister himself reportedly committed to it as part of the government’s response to the Iraq armed forces cases. Today’s hearing showed that the test can’t be implemented via statutory instrument using the LASPO powers. But it could still be brought in by primary legislation – and that would be harder still to challenge.