The Residence Test – 800 years of principle at stake

Access to justice has suffered a further setback following the recent ruling by the Court of Appeal relating to the so-called residence test. The proposed residence test was introduced by Chris Grayling when serving as Lord Chancellor. If implemented, it will restrict public funding for legal representation in civil cases to individuals who can prove that they are lawfully resident in the UK and have been so for a 12-month period at some time in the past.

To satisfy the residence test, an individual would need to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British overseas territory on the day of their application for civil legal aid. The only exceptions to this test would be if the individual was under 12 months old, was involved with the UK armed forces or a particular kind of asylum claimant.

Grayling introduced the residence test with the alleged objective of improving public confidence in the legal aid system, despite a lack of cogent evidence that this was lacking. It is difficult to try to qualify this when you consider the effect that the residence test will have if imposed – restricting access to justice to those that need it most.

Legal aid for civil matters is currently only available for the most serious of cases such as those involving the protection of children, claims against the police and public authorities involving deliberate / dishonest abuses of power and human rights breaches, mental health, disability, domestic violence, forced marriage, clinical negligence and human trafficking. The issues at stake in these cases are so fundamentally important that Parliament has determined that funding for legal representation needs to be available to all. If this provision is restricted, however, it will prevent many individuals from accessing justice, even if they have meritorious claims.

A challenge was brought by The Public Law Project (PLP) in July 2014 against the policy on the basis that the residence test was unlawful and discriminatory. PLP were successful and a judgment was handed down by a specially-convened three-judge Divisional Court which agreed that the test was unlawful on the grounds that it would be ultra vires the enabling statute and it was unjustifiably discriminatory.

The Lord Chancellor appealed the ruling and the Court of Appeal allowed this appeal in November 2015. Lord Justice Laws held that the introduction of the residence test by way of secondary legislation was lawful and that, although he recognised that the test was discriminatory, this could in his view be justified as a proportionate measure to achieve the legitimate aim of saving public expenditure.

The test that he applied to determine whether the discrimination could be justified was whether it is “manifestly without reasonable foundation” – a test which has previously been applied by the courts in the context of social security benefits. Legal aid is not a social security benefit and it is therefore disputed that this is the correct test to apply.

It is also unclear that the alleged public expenditure saving would pass this test in any event as the government have not provided any evidence to support their position that this policy will save public money. Even on the assumption that some (unquantified) savings are likely to be made, it is still highly questionable whether these justify the denial of access to justice for one of the most vulnerable sections of our societies, or indeed the creation of a two-tier system.

The representatives for PLP have confirmed that they are seeking permission to appeal this decision to the Supreme Court; given the constitutional importance of the decision, there is good reason to hope that this permission will be granted.

It will be interesting to see whether the current Lord Chancellor, Michael Gove, will continue to support the introduction of the residence test or whether it will become another remnant of the failed Grayling legacy, along with reversing the ban on books in prison, eradicating the criminal court charges for convicted defendants and scrapping the proposed criminal legal aid dual contracting system.

A civilised society is based upon a respect for the rule of law and the necessary principle that everyone is equal in the eyes of the law. The fundamental offensiveness of the residence test is that however limited your funds, you cannot say people are equally subject to the penalty of the law, but not equally subject to its protection. Moses LJ, in his judgment in the Divisional Court, appeared to understand this dichotomy quoting “He who is subject to English law is entitled to its protection”.

To discriminate against some sections of society is to threaten 800 years of legal principle laid down by the Magna Carta. Last year was the anniversary of this great charter and at a recent exhibition to celebrate its significance, held at the Supreme Court, Hodge Jones & Allen partner, Jocelyn Cockburn, was invited to provide a personal statement. In this statement she pointed to the relevance of Clause 40 of the Magna Carta to the proposed restriction of legal aid based on residence, it states: “to no one will we sell, to no one deny or delay right or justice”.

It is highly likely that the Supreme Court will be asked to decide the residence test case and time will tell whether British justice will continue to support the established notion that everyone is equal before the law, regardless of discrimination on the grounds of sex, gender, race, disability and indeed, place of residence.