The introduction of a residence test could ‘destroy’ civil legal aid, lawyers have warned following a vote by MPs in support of the measure.
Labour, which opposes the plan to restrict the availability of legal civil legal aid to those who pass a 12-month residence test, forced a deferred division on the measure yesterday. The government's proposals passed by 273 votes in favour to 203 against.
Conservative MP David Davis (pictured) rebelled, as did Liberal Democrats Andrew George, John Leech and Sarah Teather.
The proposals were criticised in a report from the joint committee on human rights last month, which said they will lead to breaches of the United Nations Convention on the Rights of the Child.
The plans are also the subject of a judicial review challenge brought by the Public Law Project in which judgment is expected next week.
A briefing from London civil liberties firm Bindmans said the ‘discriminatory’ and ‘unjustified’ test, which the government has sought to introduce through delegated legislation, creates a ‘mockery’ of the fundamental concept of equality before the law.
It said the test fundamentally changes the provision of legal aid in a way not expected by parliament when it debated the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and is ‘misuse’ of delegated legislation-making powers.
Director of the Legal Aid Practitioners Group Carol Storer said the change could ‘destroy civil legal aid’.
She said that while the government’s aim is to stop foreigners receiving legal aid, in reality it will prevent most eligible people from getting aid because they will either not have the evidence to prove residency or will not be able to gather it.
In particular she said, it will deny legal aid to vulnerable children, including those with special educational needs, mentally incapacitated people, those recently evicted or suffering a housing crisis, and women and children fleeing domestic violence, as well as recent migrants.
Law Society vice-president Andrew Caplen said the Society has consistently opposed the ‘unnecessary and discriminatory’ test. Despite some exemptions conceded by the government, he aid the Society agreed with the joint committee on human rights that the test will put the UK in breach of its international obligations.
Caplen said: ‘The test places a huge administrative burden on legal aid practitioners who will have to apply the test to all clients including British nationals.
‘We have serious concerns that many of the most vulnerable clients will not be able to provide the necessary documentation to satisfy the test and will be denied legal aid to which they should be entitled.’
In a parliamentary debate on the issue last week justice minister Shailesh Vara admitted that the government had ‘no precise figures’ to show any savings would be made from the amendment.
Justifying the move, Vara said it is ‘unfair’ to British taxpayers that legal aid is currently available to those here on a visa as tourists or those who are in the country illegally.
He said the test is underpinned by a ‘clear and commonsense’ principle that individuals should have a strong connection to the UK in order to benefit from taxpayer-funded public services.
Vara told the house he disagreed with the joint committee’s view that it will violate international law, asserting that the provisions comply with international obligations.
Labour’s justice spokesman in the upper house, Lord Beecham has tabled a ‘regret motion’ on the measure, which peers will vote on in two weeks time.
Whatever the outcome, it is likely that the measure will be introduced in August.