Posted on 10th May 2016
The Supreme Court has delivered a unanimous ruling finding against the Government’s plans to introduce a discriminatory residence test. The controversial proposal sought to withhold legal aid from anyone that could not prove an established link to the UK, as discussed in our previous blog The Residence Test – 800 years of principle at stake.
Following fierce opposition from civil liberties campaigners and a legal challenge brought by The Public Law Project (PLP), it was left to our highest court to decide its fate. The Supreme Court only required half of the estimated two-day hearing to return its verdict allowing PLP’s appeal on ground one of its challenge – that the proposed residence test was ultra vires, or beyond the powers of, the enabling statute.
PLP had argued that the proposed policy was ultra vires as the Ministry of Justice was attempting to introduce the policy through secondary legislation in order to avoid having to set the proposed measures out in a bill that would be subject to full debate in parliament. Further grounds were also argued on the basis that the residence test was unjustifiably discriminatory and in breach of the common law and the Human Rights Act 1998.
This has been a divisive issue and over the last few years has been challenged at different levels throughout the English legal system. The first challenge against the residence test was brought by PLP in the 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 then appealed the ruling and the Court of Appeal held that the introduction of the residence test by way of secondary legislation was lawful. Lord Justice Laws said 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 Supreme Court clearly disagreed, finding that the Government was acting outside the scope of its powers.
It was a controversial decision by Michael Gove to continue to support Grayling’s introduction of the residence test considering his legacy of unsuccessful policies, and ultimately one that has failed to pay off for the current Lord Chancellor.
Thankfully, the Supreme Court’s decision has preserved, at least for the time being, the fundamental principle that all those subject to the penalty of the law should equally have access to its protection. This judgment confirms that the Government will be subject to scrutiny, especially when vulnerable sections of society are being threatened by discriminatory policies that attempt to restrict essential rights, such as access to justice and equality before the law.