No commentary is really needed, I think. The powerful judgment by Lord Justice Moses finds the residence test ultra vires (beyond the powers granted by Parliament) and unlawfully discriminatory. The judgment includes some choice wording. What follows are the words of the judgment, but with some missed out. You can read the whole thing here: R (On the Application Of The Public Law Project) v The Secretary of State for Justice the Office of the Children’s Commissioner  EWHC 2365 (Admin). I’ve omitted most of the usual ellipses for ease of reading.
An individual satisfies the residence test if he or she is lawfully resident (expressly defined as meaning that those who require leave to enter or remain must have it) in the United Kingdom, the Channel Islands, the Isle of Man or a British Overseas Territory, and one of three further conditions is also met.
The first condition is that the individual is less than 12 months old. The second condition is that the individual has at any time been lawfully resident for a period of 12 consecutive months without more than 30 absent days within that period. The period of time sought to be relied on can therefore have been decades in the past. The third condition relates to certain asylum claimants.
It is not difficult to identify those on whom the application of the residence test would have a direct impact. Families of recently arrived children with special educational needs, whose access to education depends on proper provision being made to meet their additional needs, will be unable to access legal help and advice. A concrete example given by Coram Children’s Legal Centre in its response to the consultation paper is the case of L, who had recently arrived in the UK for the purposes of refugee family reunion with her husband, and who would be unable to access legal advice in relation to the failure of the local authority to assess the needs of her autistic eight year old son because she had only been in the UK for three months.
Ms Nicola Mackintosh QC of Mackintosh Law gives the example of P, a severely learning disabled adult, who had been “forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time”. With the benefit of legal aid and the involvement of the Official Solicitor, proceedings in the Court of Protection resulted in a determination that it was in P’s best interests to live separately from his family in a small group home with his friends and peers and 24-hour care. Yet, as Ms Mackintosh explains it would have been impossible to ascertain whether P met the residence test:
“We were told both that he did not have a passport and (by his family) that he did have one but that it had been lost. P did not know if he did have a passport. It was also not possible to confirm that he had been lawfully in the UK for a continuous period of 12 months at some point in the past …”
Ms Mackintosh gives other examples of incapacitated individuals who either would not have passed the residence test, or for whom it would have been impossible to prove that they did, and whose welfare would have continued to be seriously jeopardised in the absence of proceedings.
It is true that if the purpose of LASPO is correctly identified, as Mr Eadie on behalf of the Lord Chancellor would have it, as saving public funds and “seeking to further prioritise the expenditure of limited public resources in a time of real financial stringency”, then restricting legal aid not only to those with the greatest need but to those with the stronger connection to the United Kingdom, falls within the purpose of LASPO. But, in my judgment, it is not possible to spell out of the statute so broad and general a purpose. As I have said, the criteria adopted by the statute are limited to criteria by which those in the greatest need of civil legal aid are identified.
For those reasons, I conclude the instrument is ultra vires and unlawful. I conclude that LASPO does not permit such a criterion to be introduced by secondary legislation. It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred by s.9 as supplemented by s.41.
It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP  1 WLR 783 at paragraph 35). The Government has accepted that it will be “easier for UK citizens to satisfy than other nationals” and that it “falls within the ground of national origin as specified in Article 14”. Indeed, that is its declared purpose. “We have made it absolutely clear”, said the Parliamentary Under-Secretary of State, “that for the residence test it is important that they are our people – that they have some link to this country” (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: “I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013). Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :
“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?
And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals” (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).
The Lord Chancellor founds his defence on the proposition that legal assistance, in those cases where the law does not impose a duty to provide it, is no more than a form of social welfare or benefit. If that is the correct category into which such legal assistance is to be placed, there is little doubt he is right.
These cases seem to me to be different from the distribution of welfare benefits because the Government has already reached the conclusion that certain categories of case demonstrate such a high priority of need as to merit litigation supported by taxpayers’ subsidy.
The consequence of the residence test is to hamper a non-resident claimant, when compared to a resident claimant, in seeking to vindicate domestic rights which domestic public authorities are under a domestic legal obligation to secure.
In such a context, when what is at stake is the protection which domestic law affords to all who fall within its jurisdiction, it seems to me that the provision of legal assistance is far from analogous to the distribution of welfare benefits. Moreover, it is difficult to see how the rationale that legal assistance should be confined to those with a closer connection than non-residents, can possibly be applied to those who are subject to the laws of a state and seek no more than its protection. On what basis is a greater tie or greater integration sought when the claimant merely wishes to avoid a discriminatory handicap?
The other justification advanced is public confidence in the legal aid system. The Lord Chancellor had previously justified the restrictions on legal assistance by reference to commanding public confidence and ensuring credibility by targeting those people and cases where “funding is most needed” (Transforming Legal Aid: Next Steps (e.g., paragraphs 1.5, 6.3 and 20.9, 5 September 2013). It is not clear to me how the need to engender public confidence could form part of the justification for discrimination. Feelings of hostility to the alien or foreigner are common, particularly in relation to the distribution of welfare benefits. But they surely form no part of any justification for discrimination amongst those who, apart from the fact that they are ‘foreign’, would be entitled to legal assistance. Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not. In my judgement, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction. In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.
It does not seem to me necessary to choose between the many different ways in which PLP seeks to advance the same argument, whether it is equal treatment under the common law, or a breach of Art. 14, read with Art 6. I conclude that residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 LASPO.
One imagines Mr Grayling — our Lord Chancellor, protector of our legal system and the rule of law — will simply dismiss this as the ramblings of Left-wing judges. He probably won’t do it in public, though.
By Chris Beckett, on Flickr