Government proposals to restrict legal aid for judicial review will turn the clock back 50 years and perpetrate ‘significant and damaging injustice’, a retired Court of Appeal judge has warned.

Sir Henry Brooke told the Gazette that the plans to save £1m a year through the introduction of a residency test and by limiting payment to cases that pass the permission stage should not go ahead.

He criticised a ‘seriously substandard’ consultation that ‘falls very far short’ of prescribed Cabinet Office standards. To have such a consultation with a limited period for response, followed by an intention to proceed by way of secondary legislation, ‘has all the hallmarks of bad government’, he said.

With the introduction of a residence test, he said, the government is seeking to exclude ‘on ideological grounds’ certain categories of people from being able to access the courts.

The test, he warned, raises the serious issue of access to the courts for poor people, which he said goes to the heart of the rule of law.

‘I spent my lifetime trying to make access to justice for poor people more straightforward. My generation achieved quite a lot, but these proposals, coupled with [the Legal Aid, Sentencing and Punishment of Offenders Act] are setting the clock back 50 years,’ said Brooke.

He opposed the plan to grant payment for lawyers only to cases that pass the permission stage. In his formal consultation response, he states: ‘It would be utterly wrong and unfair for legal aid public law practitioners to have to depend on the capriciousness of this judicial lottery to determine whether they are paid.’

Brooke said that because the High Court had been ‘swamped’ with immigration and asylum work, judges with ‘inadequate experience’ had been assigned to public law cases and there was therefore a ‘huge disparity’ in success rates.

The court process is a ‘valuable safety valve’ for people who think they have been wronged, said Brooke, who warned: ‘If you deny access to the courts you are bottling up resentment that will spill over elsewhere. There will be disorder or simply distrust of politicians, the police and the government.

‘This is a very serious contemporary problem,’ he said.

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