The government has rejected the findings of a high-profile cross-party committee which suggested that the legal aid residence test is unlawful and will lead to breaches of international law.
A report published by the Joint Committee on Human Rights in June warned that the 12-month residence test, which was due to be introduced in August, would contravene the United Nations Convention on the Rights of the Child.
Without legal aid, the committee said, children will rarely be capable of representing themselves in legal proceedings and many with meritorious cases will be deprived from pursuing them.
In particular, the committee said, the test will have an adverse impact on unaccompanied children, undocumented children with special educational needs or disabilities and cases under sections 17 and 20 of the Children Act 1989.
So long as children have a legal right to take part in legal proceedings that affect their interests, the committee said, it is ‘wrong in principle and unlawful’ to make it more difficult for a particular group to exercise that right.
But the government this week insisted that the test would not lead to convention breaches and does not constitute discriminatory treatment.
In a response defending its policy, presented to parliament by the lord chancellor, it said limited resources had to be aimed at cases that most justify funding and that individuals should have a strong connection to the UK in order to benefit from the civil legal aid scheme.
The government said it has made a number of modifications and exceptions to the residence test since the committee's draft report last year. The test will not apply to cases relating to an individual’s liberty, where the individual is particularly vulnerable, or where the case relates to the protection of children.
Any individual unable to access civil legal aid as a result of the residence test would be entitled to apply for exceptional funding, the response said. The government is ‘confident’ that children will have the necessary assistance in order to make an application for exceptional funding.
It also disputed that children will rarely be capable of representing themselves, arguing that there have always been cases where children speak for themselves. In addition it suggested that voluntary organisations, law centres and local authorities may be able to represent affected children.
In July, the High Court condemned the residence test as ‘unlawful’, ‘discriminatory’ and impossible to justify. The government is appealing the judgment.