I am grateful for that contribution.
The Lord Chancellor made in the Daily Telegraph various comments which resulted in what was described—not alleged to have been described—as a “kick in the shins” by Lord Justice Moses. All I can say is that, during the time I have been standing at the Dispatch Box, the Lord Chancellor’s shins have been extremely bruised by the number of comments that have been adverse to him personally, to his responsibility to the office or to his disregard for the rule of law. I am sure that he is painfully aware of the harm that has been done to him by the observations that have been made. It is a matter for your Lordships whether you think that is appropriate.
I should also say this. Of course, the withdrawal of legal aid in any context is not something that any Government relish, but throughout the period—and we are now coming to the end of this Parliament—the party opposite has opposed all cuts to legal aid, whether they are civil legal aid cuts or criminal legal aid cuts. They have advanced very skilfully all sorts of arguments about the outrage that has followed. It is time for some clarity to emerge from the party opposite as to whether it will in fact restore legal aid to all these areas where it is said that they have been wrongly withdrawn or whether this is to some extent posturing on their part.
The noble Baroness, Lady Lister, referred to the difficulties that she described of children in particular in relation to the residence test. Although, as I say, I am not going to go into great detail because it is all to be considered by the court—at least in terms of the vires of the residence test—the Government’s position is that they do not believe that the JCHR should have concluded what they concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account. There have always been cases where the child speaks for himself directly or where a parent or guardian ensures that the views of the child are properly taken into account. The Government are not aware of any evidence before the committee that indicated in such cases the child is not able to express views and participate appropriately in legal proceedings.
Following the ruling of the court in the residence test case, noble Lords will be aware that the draft order introducing the residence test was withdrawn. The amendment before the Committee now would therefore introduce an exception to the residence test in the abstract. I would respectfully suggest that the appropriate place to consider any exceptions would be while considering the residence test as a whole, rather than in isolation and in the context of a free-standing provision for judicial review. Nevertheless—there should be no mystery about this—I should make it clear that we do not agree that an exception should be made to the residence test for all judicial review proceedings. The test reflects our view that individuals should have a strong connection to the United Kingdom in order to benefit from the civil legal aid scheme. In line with those principles, we therefore decided that, in general, applications for legal aid for judicial review proceedings should be subject to the same test.
The noble Baroness, Lady Lister, referred to certain “concessions”, as she described them. What happened was that, following careful consideration, we proposed certain limited and focused exceptions for judicial review cases that relate to an individual’s liberty, and for certain immigration and asylum judicial reviews. I am glad that she called them concessions; she previously described the Government’s position as a “climb-down”, which is perhaps not a kind way in which to describe the approach that the Government try to take on difficult decisions.
We believe that the residence test is by and large a fair test that should make sure that legal aid is targeted at those cases where it is justified. Moreover, it achieves
the essential policy aim of targeting legal aid at those with a strong connection to the United Kingdom. I therefore ask the noble Lord to withdraw the amendment.