Earlier this week the Joint Committee on Human Rights published its report, Legal aid: children and the residence test .The report concludes that the legal aid residence test when applied to cases involving children will lead to breaches of the United Nations Convention on the Rights of the Child (UNCRC). LAG believes that the test will also provide a considerable bureaucratic hurdle which will discourage many legal aid practitioners from taking on clients with otherwise strong cases.

 

Despite much criticism in parliament the government has proposed to implement its residence test policy by means of an affirmative statutory instrument, rather than by primary legislation, which would have subjected the proposals to detailed scrutiny through a full debate in both houses of parliament. The statutory instrument was laid in draft on Monday, 31 March. LAG understands that its implementation has been held back pending the judgement in a judicial review on the residence test, brought by the public law project. This is expected soon and provides some hope that the government will be forced to re-think its proposals.

 

Assuming the government does not re-visit its decision to introduce the test through primary legislation, the Committee requests that they withdraw the current draft statutory instrument and submit a redrafted version which deals with its concern that the UK risks breaching the UNCRC.

 

Ostensibly the Justice Secretary, Chris Grayling, wishes to introduce the residence test to prevent people without a strong connection to the UK from bringing cases funded by civil legal aid. Most applicants for civil legal aid will need to provide proof of lawful residence, such as a passport. They will also need evidence of twelve months continuous residence and will be required to produce papers such as 12 months of bank statements to prove this. Some groups of clients, for example those who have claimed asylum and people who are at risk of being detained due to mental health problems, will be exempt. Most people though, will be required to produce the proof before they can get help from a legal aid lawyer.

 

What the government seemingly fails to recognise is that many people facing a crisis, such as homelessness, may not be able to find the necessary papers to prove they are entitled to civil legal aid. Moreover, LAG believes that many practitioners are becoming increasingly risk averse to taking on legal aid cases. The difficulties of requiring clients with chaotic lives to produce papers proving residence will be a further disincentive to many lawyers to provide a service.

 

In LAG's view the residence test seems nothing more than a cynical ploy to suppress demand for civil legal aid. It is an unfair barrier to justice for the poor and disadvantaged and should not be implemented.