Was the government’s policy so bad the court didn’t even wait until the end of the hearing to strike it down?
The Supreme Court has made legal history by making a ruling against the government midway through the scheduled hearing, leaving the Ministry of Justice more than a little red-faced.
Yesterday, an appeal against the government’s proposed legal aid residence test — brought by legal charity The Public Law Project — was unanimously, and unprecedentedly, allowed by seven justices at the end of the hearing’s first day, slicing the scheduled courtroom time in half.
The case, which was originally expected to last two days, concerned the proposed civil legal aid residence test — the brainchild, if he is capable of delivering such a thing, of former Justice Secretary Chris Grayling. In a controversial attempt to curb public spending, the test sought to limit the availability of civil legal aid to litigants who had lived in the UK for one year or more.
The Public Law Project, represented by human rights law firm Bindmans, brought a judicial review challenge against the contentious proposal, which was framed on two grounds: First, the proposed test was ultra vires of the enabling statute. Second, the proposed test was unjustifiably discriminatory.
After a roller-coaster journey through the High Court and the Court of Appeal, this week the case finally arrived at the highest court in the country.
Court proceedings kicked off yesterday, but that doesn’t mean a court judgment was expected anytime soon. Parties can expect to wait months to find out the result of a Supreme Court hearing, and that’s why yesterday’s turn of events was so surprising.
On Monday evening, it was revealed that the judges — including law student favourites Lord Neuberger and Lady Hale — had delivered their decision at the end of the afternoon, allowing the appeal on its first ground. Dinah Rose QC broke the news on social media.
Confirmation now in: @publiclawprojct have won legal aid residence test appeal in SC on first ground (vires). Huge congratulations to team.
— Dinah Rose (@DinahRoseQC) April 18, 2016
The court last night gave the parties the chance to consider whether they wished to plough on with the second ground of the challenge, but it has been confirmed this morning that the Supreme Court does not consider it necessary to hear argument on this. The proposed residence test is therefore unlawful, and a full judgment is expected in due course.
This move is totally unexpected and totally unprecedented, made even more exciting by the unusually high number of judges sitting and the unanimous ruling. It has rightly been described as “remarkable” and a “surprise”, but, for a large majority, a happy one. The government’s recent onslaught on legal aid has had malign consequences for so many lawyers that it’s unsurprising they have applauded the justices for finding against the Lord Chancellor so comprehensively.
@DinahRoseQC @publiclawprojct so was this one where the Govt's position was just so ludicrous all 7 judges were like 'nah sorry you lose'
— well loved stories (@ms_peaceweaver) April 18, 2016
Fabulous news for legal aid watchers! @publiclawprojct challenge to residence test succeeds in @UKSupremeCourt Well done all involved!
— Garden Ct Public Law (@GardenCtPublic) April 18, 2016
This is a humiliating defeat for the MoJ and Lord Chancellor. Government policy summarily overturned #SaveLegalAid https://t.co/DIPKIav6no
— PJM QC (@pjm1kbw) April 18, 2016
The message from the other side was understandably one of disappointment. A spokesman for the Ministry of Justice last night said:
We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.
It’s a major defeat for the Lord Chancellor and chums, but it’s certainly not the first. A startling number of Grayling’s policies have been swept aside since he was replaced. The criminal courts charge was scrapped late last year, and, a matter of weeks later, current Justice Secretary Michael Gove announced that the legal aid dual contract system would be given the boot, too.
Legal Cheek wonders whether there will be anything left to show of Grayling’s chancellorship in the years to come. Whether, indeed, he will only be remembered, if at all, for what he failed to do — the Justice Secretary who disappeared without trace.