‘Mob rule’ must not dictate legal aid policy

It was the outcome many legal aid and human rights solicitors were hoping for, but no one saw coming in the way that it did.

The Supreme Court took the unprecedented step of allowing Public Law Project’s challenge to the government’s plans to introduce a civil legal aid residence test midway through the hearing.

The court ruled that the lord chancellor acted beyond his powers to introduce the test via secondary legislation.

To satisfy the test, an individual would need to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British overseas territory on the day of the application for civil legal aid.

Unless they were under 12 months’ old or a particular kind of asylum claimant, or involved with the UK armed forces, applicants would have had to be lawfully resident for a 12-month period.

PLP’s challenge was backed by the Law Society, which stated in its written intervention that the test was unlawful because ‘it discriminates indirectly against those who are not of British nationality, ethnicity or national origins as regards the exercise of their right to access to justice, and cannot be justified’.

But if you thought the court’s decision now marks the end of the matter, think again.

Yesterday, David Mowat, Conservative MP for Warrington South, told justice minister Shailesh Vara that ‘ours is still the only country in the world that pays foreign nationals to sue our own soldiers, and last week the Supreme Court told us that the government did not have the power to curtail legal aid for that purpose. The only solution, apparently, is primary legislation. Will the minister tell us how he intends to make progress on this matter?’

One Nation includes all citizens, not just those who agree with you

Vara responded that Mowat had made a ‘good point’ about the residence test.

Interestingly, he continued: ‘He will appreciate that, while I have enormous sympathy with his view - as do many other people, including, in particular, millions in the country outside - we for our part await the written judgment of the court, and will reflect on it.’

First, who are these ‘millions’ Vara is referring to? Second, just because ‘millions’ share a similar view, does that make it right to introduce something that removes a rather wide group of people, which includes more than those suing British troops, from the scope of legal aid eligibility?

Legal aid policy should not be dictated by what government believes to be popular. The Ministry of Justice could do well to read its stated list of priorities, which includes: ‘Build a One Nation justice system by making access to justice swifter and more certain for all citizens whatever their background.’

That One Nation includes all citizens, not just those who agree with you – even if they are the majority.

Monidipa Fouzder is a Gazette reporter