UK Supreme Court Might Be Able to Teach US Court a Lesson on Urgency of Protecting Legal Aid

Tomorrow, Tuesday the 19th, LSC and its friends will enjoy an invitation-only reception at the US Supreme Court following the LSC day at the White House, and to be addressed by Justice Kennedy, among others.  It is obviously a very important step to have access to justice and LSC recognized in this way by the Court, and a great achievement for the LSC Board and President.

But, I can not help noting that today the UK Supreme Court took an even more important step, that was also profoundly symbolic in the way they took it.

As the Guardian puts it:  “Judgments from the supreme court in Westminster are invariably reserved and delivered months after any hearing.”

That certainly sounds familiar.  But, when the Court was hearing a case challenging the imposition of a residency test for legal aid by the Ministry of Justice (MoJ):

Halfway through a two-day hearing, the bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice. .  .  .  the justices, led by the president of the supreme court, Lord Neuberger, delivered their decision after a few minutes’ recess at the end of the afternoon.  .  .  Such a swift ruling is a humiliating setback for the MoJ. 

In a brief statement, the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

The Guardian also carried the plaintiff’s response to the decision:

Welcoming the decision, John Halford, the solicitor from Bindmans law firm who respesented the PLP, said: “The British legal system is rooted in two fundamental principles – that all equally enjoy the protection of our laws and all are accountable to our courts.

“The lord chancellor takes an oath of office to honour these principles but planned to undermine them by withholding legal aid from those who failed his residence test, leaving them unable to enforce legal rights in the most compelling cases.

“Yet today, after minutes of deliberation, seven justices of our highest court held him accountable, ruling he was acting in a legal vacuum and without parliamentary authority. Rationing justice using a residence test was, and always will be, repugnant to British law.”

Can you image Justice Roberts announcing a decision about legal aid eligibility after hearing only half the case, because of the overwhelming force of the position.  (Interestingly, the case summary on the UK Supreme Court’s website makes clear that the residency test was for civil, not criminal legal aid.)

Its a nice thought to ponder.  Actually, I’d be happy with the right decision immediately after the end of the hearing!


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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