10 Reasons to Vote Against the Legal Aid Residence Test

28 NGOs unite to call on peers to vote against the legal aid residence test

UPDATE: 15th JULY 2014
Unauthorised, discriminatory and impossible to justify’ – the Divisional Court gives judgment on the Lord Chancellor’s civil legal aid residence test

This is a fantastic victory for everyone concerned about access to justice for the most vulnerable in our society. We are delighted to have contributed by giving evidence of how the ‘residence test’ would have affected migrant women fleeing domestic violence.


SBS supports this very important campaign. The residence test will have a devastating impact on vulnerable groups including abused BME women. It will increase their risk to violence and exploitation and makes a mockery of the government’s commitment to seriously combat violence against women and girls.

Earlier this week, the House of Commons approved regulations which are intended to implement residence test for most of the 46 forms of civil legal aid.

Civil legal aid was first introduced through the Legal Advice and Assistance Act 1949. Since then, its availability has always depended on three things: the type of case must be prioritized in the legal aid scheme; it must be strong and important enough to justify public money being spent on it; and the financial resources of the person involved must be so limited that it would be impossible for them to pay for a lawyer themselves.

If implemented, the residence test will fundamentally change all this. For identical, equally strong and important cases, all of which are prioritised for funding in the legal aid scheme, some people will receive legal aid whereas others will receive no help at all. The only difference will be ‘residence’ status i.e. whether those who need legal aid are physically here and can prove they have lived here lawfully for more than 12 months. Who will be excluded is obvious: they will be recent migrants and their children, irregular migrants and their children (including those born in the UK many years ago) and those who cannot prove where they have been living for practical reasons e.g. domestic violence victims who have been driven out of their homes, homeless people and pre-school age children.

Acting for the Public Law Project, Bindmans LLP has brought a judicial review of the residence test that was heard on 3 and 4 April.

But rather than await the judgement of the Court, the government continues to push through the regulations. The aim is to have the test in force on 4 August.

Today, 28 of the U.K.’s leading NGOs united to brief peers on the 10 compelling reasons why they should vote against the regulations on 21st of July in what is known as a ‘fatal motion’.

Fatal motions are rare, but not unknown. For example, the House of Lords rejected regulations to remove legal aid from certain welfare benefits appeals in December 2012, in March 2007 it rejected statutory instrument which would have set up a super casino in Manchester and in 2000 it twice rejected GLA election rules. There are especially strong grounds for a fatal motion on this occasion because two Parliamentary committees (the Joint Committee on Human Rights and the Joint Statutory Instruments Committee) have already reported that the residence test is unlawful.

Click here to download the full House of Lord briefing.

There are 10 reasons to vote against the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014:

  1. It introduces a fundamental change that was not contemplated by Parliament;
  2. It is a misuse of the delegated legislation-making powers in LASPO;
  3. It introduces a discriminatory test that targets ‘foreigners’;
  4. The discriminatory test it introduces is wholly unjustified;
  5. The test will have a particular effect on vulnerable children;
  6. The test flouts the UK’s obligations under the UN Convention on the Rights of the Child;
  7. The test will leave mentally and physically incapacitated people without legal aid for cases concerning their welfare;
  8. The test will make it impossible for victims of abuse and crime to hold those responsible to account;
  9. The test will serve to immunise the State from the Rule of Law; and
  10. The test creates a mockery of a fundamental British value: equality before the law

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