THE BLOG

The Government Should Abandon Its Unlawful Legal Aid Residence Test Plan

04/08/2014 09:29 BST | Updated 03/10/2014 10:59 BST

Today, something ordinary will happen. At Coram Children's Legal Centre we will be referred a new case: a child in need of legal support that she cannot afford to pay for herself. Perhaps she will be a child who has been trafficked and abused whom the Home Office did not recognise as a victim. Perhaps she will be a toddler whose mum takes her on buses all night, every night to avoid sleeping in the streets and whom children's services are refusing to help. Perhaps we will speak to the parent of a child with special educational needs who has been denied the support to which the law entitles her.

Sixty-five years on from the introduction of legal aid, we will do as we always do and ascertain that this child is financially eligible for free legal assistance and that her case is sufficiently strong to merit us granting funding, and we will begin work with the child to try to solve the problem. And this will be remarkable. Remarkable because, without a landmark legal challenge, this child would have been denied help by a new policy restricting her access to legal aid.

On 4 August 2014 a 'residence test' for legal aid was to be implemented by the government. If this policy had come into force, we would have had to ask that child to produce documentation to prove that she was lawfully resident in the UK and she had been lawfully resident in the UK for a continuous period of 12 months at some point in the past. She may not have been able to do so, either because, through no fault of her own, she had no legal status, or because she was newly arrived, or because, even though she met the requirements, at a time of crisis she simply could not produce the paperwork required.

The residence test will not come in today, because on 15 July the High Court ruled that it was unlawful. In a powerful, unanimous judgment, the court held that the Government did not have the power in law to bring it in. The case, brought by the Public Law Project represented by Bindmans, established that the residence test went beyond the original purpose of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in depriving certain people of legal assistance only on the basis of residence status, a basis wholly unrelated to their need for that assistance. The judges held that such discrimination between cases of equal need was unlawful and unjustifiable, emphasising that 'what is at stake is the protection which domestic law affords to all who fall within its jurisdiction'. Above all, the judgment upholds the principle that all are equal before the law.

We and many others working for children's rights welcome this judgment. Coram Children's Legal Centre and others have argued since the plan was first proposed in April 2013 that it went against children's rights and the rule of law. We, the Children's Commissioner and others pointed out the threat it posed to children's access to justice. In June 2014 the Joint Committee on Human Rights concluded that restricting legal aid in this way was incompatible with the UK's obligations under the UN Convention on the Rights of the Child. Indeed, even a group of 145 Treasury Counsel - the Government's own senior lawyers - warned that the policy was 'unconscionable' and 'impossible to reconcile with the rule of law'.

Before the judges had even given their ruling, the government had already asked Parliament to approve the secondary legislation that would have brought the residence test into force. That secondary legislation has now, thankfully, been withdrawn. But despite the High Court's ruling and the fact that no evidence has been produced of any financial savings from this unlawful policy, the residence test may yet survive. Now, rather than abandoning it, the government is appealing against the High Court's judgment. It is expected that the case will be heard by the Court of Appeal in the new year. Alongside others, we will continue to do all we can to make sure that, when a child comes to us for help, we can provide them with legal assistance and not be forced to deny them the help they need to enforce their rights and hold the authorities to account.

Anita Hurrell is Legal and Policy Officer at Coram Children's Legal Centre