14th July 2014

Last week, the House of Commons approved regulations which are intended to implement residence test for most of the 46 forms of civil legal aid.

Civil legal aid was first introduced through the Legal Advice and Assistance Act 1949. Since then, its availability has always depended on three things: the type of case must be prioritized in the legal aid scheme; it must be strong and important enough to justify public money being spent on it; and the financial resources of the person involved must be so limited that it would be impossible for them to pay for a lawyer themselves.

If implemented, the residence test will fundamentally change all this. For identical, equally strong and important cases, all of which are prioritised for funding in the legal aid scheme, some people will receive legal aid whereas others will receive no help at all. The only difference will be ‘residence’ status i.e. whether those who need legal aid are physically here and can prove they have lived here lawfully for more than 12 months. Who will be excluded is obvious: they will be recent migrants and their children, irregular migrants and their children (including those born in the UK many years ago) and those who cannot prove where they have been living for practical reasons e.g. domestic violence victims who have been driven out of their homes, homeless people and pre-school age children.

Acting for the Public Law Project, Bindmans LLP brought a judicial review of the residence test that was heard on 3 and 4 April.  Judgment is scheduled to be handed down at 10.15am on Tuesday, 15 July.

But rather than await the judgement of the Court, the government continues to push through the regulations. The aim is to have the test in force on 4 August.

Today,  28 of the UK’s leading NGOs united to brief peers on the 10 compelling reasons why they should vote against the regulations on 21st of July in what is known as a ‘fatal motion’. 

Fatal motions are rare, but not unknown. For example, the House of Lords rejected regulations to  remove legal aid from certain welfare benefits appeals in December 2012, in March 2007 it rejected  statutory instrument which  would  have set up a super casino in Manchester and in 2000 it twice  rejected GLA election rules.  There are especially strong grounds for a fatal motion on this occasion because two Parliamentary committees (the Joint Committee on Human Rights and the Joint Statutory Instruments Committee) have already reported that the residence test is unlawful.

The House of Lords briefing is available here.