Lord Chancellor’s appeal, with permission granted by the court below, against the decision of the Divisional Court granting a declaration that legislation which the Lord Chancellor proposed to introduce by statutory instrument would be unlawful. Mr Eadie QC summarised the effect of the propose regulation: ‘To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12-month period at some time in the past (excluding absences of up to 30 days).
There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding . . regime in section l0 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the European Convention or EU law are able to obtain it.’
Held: The LC’s appeal succeeded. The proposed regulations were intra vires the LC’s powers, and though discriminatory, the discrimination was justified.
Laws, Kitchin, Christopher Clarke LJJ
[2015] EWCA Civ 1193, [2016] 2 WLR 995, [2015] WLR(D) 480
Bailii, WLRD
Legal Aid, Sentencing and Punishment of Offenders Act 2012
England and Wales
Citing:
At Admn – The Public Law Project, Regina (on The Application of) v The Secretary of State for Justice The Office of The Children’s Commissioner Admn 15-Jul-2014
The claimant challenged the lawfulness of the 2014 Regulations which amended the entitlement to legal aid for those failing a residence test: ‘ the effect of this amendment will be to exclude those who have a better than fifty-fifty chance of . .
Cited by:
At CA – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Lists of cited by and citing cases may be incomplete.
Legal Aid
Updated: 06 January 2022; Ref: scu.554999
