The Supreme Court has issued its judgment in the residence test. As we reported at the time of the hearing, the Court took the very unusual step of upholding the appeal partway through the case. It’s now given its reasons.
In The Public Law Project, R (on the application of) v Lord Chancellor  UKSC 39, Lord Neuburger gave the only judgment, the other six justices agreeing. He only dealt with the first ground of appeal – ultra vires – it being agreed that, as the case won on that ground alone it wasn’t necessary to deal with the other ground (discrimination).
Lord Neuburger held that LASPO defines what civil legal aid services are to be made available by reference to the issue of law, the nature of the services and the need and ability to pay of the individual requiring the services. There is nothing in the Act that excludes groups of people on the grounds of personal circumstances or personal characteristics beyond that – such as resident status – and nothing in the Act that enables such an exclusion to be brought in using the powers given to make secondary legislation. He also noted the strong presumption in statutory interpretation that every Act applies not just to persons belonging to the territory affected by the Act, but also to “foreigners…within its territory”.
We’ve remarked before on the varying interpretations of the statutory purpose of LASPO. Lord Neuburger addressed that as well; “the purpose of Part 1 of LASPO was, in very summary terms, to channel civil legal aid on the basis of the nature and importance of the issue, an individual’s need for financial support, the availability of other funding, and the availability of other forms of dispute resolution. The exclusion of individuals from the scope of most areas of civil legal aid on the ground that they do not satisfy the residence requirements of the proposed order involves a wholly different sort of criterion from those embodied in LASPO and articulated in the 2011 paper.” This is a helpful formulation, putting the emphasis back on targeting need rather than reducing costs.
However, although it’s now clear that the residence test can’t be brought in by statutory instrument, it still could be done by primary legislation. The previous Prime Minister, David Cameron, made clear he supported that – though no legislative plans had been announced. It remains to be seen whether Theresa May – and whoever she appoints as Lord Chancellor – agrees.