Legal Update: Proposed legal aid policy unlawful

The coalition government has made cuts to legal aid that have dramatically transformed the legal landscape. In April 2013, the assistance, designed 65 years ago to help those who had strong cases but could not afford to pay for a lawyer, was removed from certain areas of the law. These include private family law, social security law, much of housing law, some parts of education law and most of immigration law.

At the time that the changes were debated, parliament deliberated on what areas of law should be protected from cuts and these protected areas were listed in legislation. Protected areas included, for example, judicial review challenges against public bodies acting unlawfully and cases concerning children's special educational needs. However, just after the cuts came into force, the coalition government announced that it planned, through secondary legislation, to bar certain people - including certain children - from receiving legal aid even if their case fell within one of these protected areas. It proposed to do this on the basis of a "residence test", whereby every applicant for civil legal aid would be required to produce documentation to show that, first, they were lawfully resident in the UK, and second, they had been lawfully resident for at least 12 months in the past.

Unjustifiable and discriminatory

The government was unable to demonstrate any financial savings from the proposed residence test. The proposed test came under much criticism, including from a group of 145 Treasury counsels, the government's own senior lawyers, who warned that the policy was "unconscionable" and "impossible to reconcile with the rule of law".

Serious concerns were raised by the children's commissioner and important parliamentary committees, including the Joint Committee on Human Rights, which concluded in June 2014 that the test was incompatible with the UN Convention on the Rights of the Child.

Now the High Court has held, in a powerful judgment handed down on 15 July 2014, that the policy is unlawful. The case establishes that the government did not, in fact, have the power in law to make a residence test for civil legal aid that would deprive people of assistance on a basis unrelated to need. The judges held that this went beyond the original purpose of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, under which the test was to be introduced.

The High Court also held that the discrimination that would have been introduced by the test, which would deprive certain people of judicial protection on the basis of residence status, was unjustifiable. Legal aid, it was held, is not analogous to welfare benefits as "what is at stake is the protection that domestic law affords to all who fall within its jurisdiction".

The government could not legitimately rely on the possibility of saving money to justify the discrimination, nor could it rely on the argument advanced about public confidence. Above all, the judgment reaffirms the principle of equality before the law.

What next?

Before the High Court's judgment on 15 July, the government had already asked Parliament to approve the piece of secondary legislation that would have brought the residence test into force, with implementation planned for 4 August 2014. As a result of the judgment, this secondary legislation has now been withdrawn and the policy will not come into effect in August as planned.

However, rather than abandoning the policy, 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.