By Jacqueline Farmer, Right to Remain volunteer.

Great news!  This week, a timely and scathing judgment  by a rare three-judge Divisional Court in PLP v Secretary of State for Justice, ruled that the atrocious “residence test” is unlawful.  Lord Justice Moses led the judgment, finding that it was not within the Justice Secretary’s power to introduce the residence test, and that its blatantly discriminatory intentions and effects are unjustified.

This is excellent and nicely vindicates what various NGOs, lawyers and academics have been saying since the residence test was first proposed.  This post focuses on the key points made by the judgment and its possible effects on the House of Lords vote currently scheduled for Monday 21 July.

In reporting on this case, there are a few legal terms being bandied about quite a bit, so here is a quick explanation of the most important ones:

Judicial Review and the Administrative Court

This case is an example of a judicial review. If someone wishes to challenge an exercise of power by a government authority on the basis that it is unlawful, then they can apply to the Administrative Court for judicial review (although, confusingly, most judicial reviews in individual asylum and immigration cases are now heard in the Upper Tier Tribunal).  The Administrative Court is part of the High Court that deals specifically with judicial review cases.  A single judge will first decide whether the matter should be heard by the court – if the case gets past this stage then it will proceed to a full judicial review hearing with one or more judges.

In this example, the challenge was against the Justice Minister, Chris Grayling, in respect of his introduction of the residence test.  The Justice Minister wants to amend LASPO 2012 ( the Legal Aid, Sentencing and Punishment of Offenders Act) in order to introduce the residence test.  The amendment order is an example of secondary legislation (as opposed to the original act, which is primary legislation).  Secondary legislation which, after judicial review, is found to be unlawful, can be set aside so that it is not implemented.

Thankfully, this is what the 3-judge panel did in this case.  There are a limited number of grounds on which a judicial review can be decided against the government authority and two of them were invoked here.

Ultra Vires

“Ultra vires” means “beyond powers”.  One of the successful arguments in this case was that Parliament, while conferring on the Justice Minister various powers, never intended to give him the power to introduce the residence test.  His doing so was outside the scope and extent of his authority and is therefore unlawful.  Lord Justice Moses summarised the purpose of LASPO as being to allocate legal aid to those in the greatest need.  It is possible for Mr Grayling to amend the law so that this purpose can be better fulfilled.  However, the amendment put forward extends the scope and purpose of the original act.  It is therefore beyond the power of Mr Grayling’s position to do this.

Discriminatory and Unjustified

Although it is possible for UK citizens to fail the residence test, and it is possible for non-citizens to pass it, it is clear that it will affect migrants more harshly than citizens.  Whether a fan of the residence test or not, no one has denied that it is clearly discriminatory.

In pointing this out, Moses LJ took the opportunity to reference a quote from the Justice Minister printed in the Daily Telegraph shortly after the parties finished arguing their case in April (para.60).

“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).”

Perhaps my left-wing brain is twisting these words in the most pleasing way possible, but it reads to me as if the Lord Justice is a bit annoyed.

In some instances discrimination can be justified (legally).   Here, the arguments mostly revolved around whether it is lawful to allocate legal aid on a discriminatory basis with aim of cutting costs and winning public confidence (because there has been an increase in xenophobia in the last few years and apparently the government considers this to be a sound legal argument and not a gravely concerning development to be immediately discouraged).

Saving money was not considered to be enough on its own to justify discrimination here.  This ties in a bit with the ultra vires point in that the purpose of the law here was to allocate legal aid to those who need it most.  Failing to pass the residence test cannot be taken in any way to indicate that someone is less in need of legal aid.

The court also had very little time for the compulsion to pander to public mistrust of those without a “strong connection” to the UK. Lord Justice Moses said at para.84:

 “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.“

Equality before the law is a distinct theme in this judgment.  See also:

para. 77, citing Lord Scarman (in ex parte Khawaja ([1984] AC 74, 111-2):

“every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection.”

Ultimately, the Court decided that the government proposals to introduce the residence test for civil legal aid are unlawful.  Not only does it overstep the authority conferred under LASPO 2012, upon which the secondary legislation relies, but the discriminatory nature of the test is not justified.

What’s next?

The Court has not yet decided whether the Order concerned should be set aside.  If they do not set aside (or “quash”) the Order, then there may be the possibility of appeal.

• A final vote on the residence test was scheduled to take place on Monday 21 July in the House of Lords. It seems that this vote may no longer be taking place, as it is no longer listed on the House of Lords order of business for 21 July.
• The Ministry of Justice have said they intend to appeal the verdict.  They will need to get permission to appeal first.  In the meantime, they have confirmed they will not be introducing the residence test on 4 August as had been planned.

The judgment makes for quite a heartening read, invoking sharp rationality as well as, at times, thinly-veiled irritation. It is quite a long read as well, so for the best bits, you could look at the Free Movement abridgement, or the press releases by the Public Law Project and Bindmans, the victorious litigants.

I hope Mr Grayling doesn’t feel like he is being persecuted by all the left wing judges now, in addition to the left wing lawyers. Sometimes lawyers are left-wing.  Sometimes they are just correct in their analysis of what the law says and it’s exactly what they’ve been telling you for ages.