Government’s legal aid proposals unlawful, says legal expert

June 4, 2013

A legal opinion by a leading QC has found that the Government’s proposed changes to legal aid – for which the consultation closes today – are unlawful.

The opinion, prepared by leading public lawyer Michael FordhamQC, argues that the proposed ‘residency test’ would amount to unlawful discrimination against non-nationals. NGOs including Reprieve, Liberty, Mind, the Public Law Project and Shelter say that, if implemented, the residency test would have disastrous consequences for vulnerable individuals and a catastrophic impact on NGOs’ ability to ensure state accountability.

The residency test would prevent people accessing legal aid unless they are lawfully resident in the UK and have been continuously resident for a period of twelve months at any time prior to application.

The test would therefore prevent the victims of illegal UK Government activity overseas – such as complicity in torture or CIA drone strikes – from being able to hold ministers accountable for their part in their mistreatment.  This would apply even if the case was brought by a British national not currently resident in the country – for example, because they continued to be held in a foreign prison.

The residency test is one of a number of proposed changes announced in April of this year in a government consultation document called “Transforming Legal Aid: delivering a more credible and efficient system.” However, the proposals themselves have already been heavily criticised by lawyers, judges and civil society as lacking in credibility. The opinion published today identifies a “paucity in reasoning and the absence of anything approaching a proper assessment of its implications.”

Kat Craig, Legal Director of legal action charity Reprieve which does not directly benefit from legal aid funding, commented on how her organisation nonetheless felt compelled to act: “In the last five years alone many cases brought by non-UK residents have exposed horrific abuses by state agents, including torture and murder. This proposal is a crude and discriminatory measure by the state to immunise itself from further embarrassment.”

Ravi Low-Beer of Public Law Project (PLP), and coordinator of NGO coalition PLINGO, said: “This proposal contravenes the principles on which our democracy is built, including decisions by our highest courts that everyone within the UK should enjoy equal protection of our laws. These cases don’t just benefit the individuals bringing them, they are an essential check and balance on government action and so benefit everyone.”

John Gallagher of homelessness and housing charity Shelter said: “If these proposals go through, they will remove a vital safety net that prevents families becoming homeless. No-one should be in any doubt that if homeless and destitute people have no-one to turn to when they are rejected by the agencies who should be helping them, we could see families sleeping on the streets.”

Shami Chakrabarti of Liberty said: “Laws without access to advice and representation are a dead letter and an empty threat, leaving the most vulnerable in our country open to abuse and neglect. Politicians are quick to call the lawyers when they find themselves in trouble. Why won’t they allow the same help for ordinary people.”


Notes to editors

1. For further information contact Donald Campbell donald.campbell@reprieve, tel 0207 553 8180

2. The legal opinion was provided to PLINGO, which stands for ‘Public Lawyers in Non-Governmental Organisations’. The group was established by PLP in early 2005, as an information exchange, debating forum and voice for lawyers in this sector.

3. PLINGOs members are Liberty, Howard League for Penal Reform, Reprieve, Friends of the Earth, Prisoners Advice Service, Disability Law Service, Mind, Child Poverty Action Group, Shelter, World Wildlife Fund, Just for Kids Law, Coalition for Access to Justice for the Environment and the Public Law Project.