LEGAL AID: Residence test found discriminatory and unlawful by High Court

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Under the residence test it is unlikely Jean Charles De Menezes family would have qualified for legal aid

Under the residence test it is unlikely Jean Charles De Menezes family would have qualified for legal aid

By Rachel Harger DtRtP and Paralegal at Bindmans LLP

Yesterday on Tuesday 15th July 2014 the government’s draft legislation to introduce a residence test for legal aid was struck down by the High Court on the basis it is discriminatory and unlawful. The Commons approved the draft legislation last week. The House of Lords will vote on the legislation next week.

Under the proposed residence test, civil legal aid would not be available to those unable to prove lawful residence in the UK for 12 months – had this test already been in place it would have been unlikely the families of Jimmy Mubenga and Jean Charles De Menezes were eligible for legal aid.

Lord Justice Moses quoted Lord Scarman in his judgment saying, “he who is subject to English law is entitled to its protection” and he also commented on Grayling’s claims that there is public support for the legislation, “in the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”

John Halford, a solicitor from Bindmans LLP, represented the Public Law Project (PLP), the organisation that brought the judicial review challenge.
He said: “What we need to see now is the response of the government. We would like to hope that the House of Lords will not endorse this unlawfully drafted legislation, especially when it’s discriminatory.

“Using powers that were never his to exercise, the Lord Chancellor has attempted to refashion the legal-aid scheme into an instrument of discrimination so that many of the cases parliament itself identified as most worthy of support could never be taken.

“The court’s judgment on that attempt is emphatic: it is simply unacceptable in a country where all are equal in the eyes of the law. Legal aid is, and must remain, the means to safeguard equality in our courts, regardless of people’s origins, nationality or place of residence.”

You can read the full judgment here: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2365.html 

Keep up to date with the ongoing campaign for Legal Aid via the Justice Alliance website: http://justiceallianceuk.wordpress.com

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