Residence – the new nine tenths of the law?

The proposal by the government to introduce a residence test to determine whether individuals qualify for civil legal aid is back on the agenda after a recent ruling in the Court of Appeal. In order to satisfy the test, an individual would have to prove the following;

• They are lawfully resident (expressly defined as meaning those who require leave to enter or remain must have it) on the day the application for civil legal service is made;
• In the United Kingdom, the Channel Islands, Isle of Man or a British Overseas Territory;
• Have resided for a period of 12 months at any time in the past from the date of the application (excluding absences of up to 30 days)

The exceptions to this are if the individual is less than 12 months old or within the armed forces. Some asylum claimants may also be exempt.

A national legal charity called the Public Law Project challenged the potential introduction of the test on the grounds that it was beyond the government’s powers to introduce such a requirement by way of a statutory instrument, as they had done here (ultra vires), and the effects of it would be discriminatory. The challenge was successful in the first instance at the High Court however this was overturned on appeal unanimously by Laws, Kitchin and Clarke LJJ in the Court of Appeal. Laws LJ argued in his judgment that the current legislation governing access to legal aid – Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) allowed the Lord Chancellor to implement restrictions on the basis that it would save on costs in which the residence test would be part of that strategy. It was accepted by Laws LJ that the test was discriminatory however the question was whether this was justified. It was held that the saving of public funds was a legitimate aim and the residence test would be a proportionate means of achieving this.

In relation to the point of costs, it is important to note that the main objective of the test was to improve public confidence in the legal aid system rather than it being a cost cutting exercise but given the barrier it would erect to accessing justice we feel that it would have the opposite effect. Witness statements were deduced from the lawyers representing the family of Charles De Menezes, a solicitor acting on behalf of a woman lacking mental capacity who had been in imprisoned in a kennel by her husband’s family and another solicitor acting for a destitute child as a result of local authority disputes over responsibility. These all stated that legal aid would not have been accessible to their clients had the residence test been implemented. We think the public’s confidence would be bolstered knowing that such cases can brought in to the Court and the voices of such people heard. Furthermore, it is unclear whether a refugee with a legitimate right to stay, who has recently arrived to the country, would be eligible for legal aid in a social housing matter if the residence test was implemented.

This ruling highlights another potential barrier that could be introduced in the near future preventing ordinary people from accessing justice as outlined in our innovation in law report titled ‘Unjust Kingdom’. The introduction of the residence test would only strengthen the findings of the report in which it was found that ‘63% of the public do not believe that professional legal advice is an affordable option for ordinary people’. There are also some practical issues about how proof of residence can be provided.

It is likely that the Public Law Project will appeal the decision by the Court of Appeal and take it to the Supreme Court. This would inevitably delay any introduction of the test but it remains to be seen whether the Lord Chancellor would still want to exercise the right to introduce or to abandon it like he did recently with scrapping criminal court charges for convicted defendants.

We think there is something reminiscent of ‘An Inspector Calls’ about the policy, but the policy is not aimed at the poor so much as those that may have links abroad. Essentially it amounts to prohibiting access to justice to people who have been wronged, unless they can prove that they have lawfully resided in the UK for at least 12 months. For some, this will be easy because they lead settled lives. For others, particularly the vulnerable people who most need the support of solicitors and access to assistance, it will be yet another barrier to obtaining assistance. It may be the barrier that they cannot, for one reason or another, get through. It will not just be those that are ineligible that will be prevented from getting help if it comes into force. Many who would be eligible may find proving eligibility cumbersome, like those who suffer from domestic violence who maybe fearful of obtaining assistance.

If it stops even one person with a valid claim then it has taken away the expectation that we are all equal in the eyes of the law. We are concerned that it takes people’s voices from them at a time when they need it most and prevents them from accessing the one safeguard we must all have in a fair and civilised society – the rule of law!

We do not believe this is right. No amount of xenophobic hyperbole will make us believe it either. It offends everything that is at the heart of British sensibilities to believe that accountability is only available to those with either significant wealth or who live in the right postcode.

The unfairness of a policy is not always so obvious from the outset as it is here. These changes will create only injustice, as it applies irrespective of the merits of a claim.

But with those that are wronged having been left silenced by the policy, without the media contacts to get their story heard and without the ability to bring a claim through the courts, we might be spared the guilt of finding out how we let them down by failing to speak for them. That would be a truly haunting silence to endure.