I am unable to answer that specifically. I am afraid that I do not know. I accept that there is a difference in the process, and I am sure that rejection is very rare indeed. However, that does not mean that a statutory instrument is not scrutinised. It is scrutinised, but there just happens to be a different method of scrutinising it—as my noble friend knows only too well.
Furthermore, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. The approach envisaged by LASPO remains appropriate and effective, ensuring that any restrictions—indeed, any changes to eligibility or scope—whether technical or major, will get the scrutiny they require, but this should not necessitate primary legislation.
Finally, the amendment would have the serious effect of annulling any previous instruments made under Sections 2 or 9 of LASPO that restrict eligibility for, or scope of legal aid for, judicial review, including the provisions of an order debated and approved by Parliament in 2013 to ensure that the exclusions relating to judicial review agreed at the time of LASPO function as Parliament intended. Noble Lords will recall that the relevant amendment made under the 2013 order, which made it clear that legal aid for judicial review is governed by paragraph 19 of Part 1 of Schedule 1 to LASPO—and not any other provision—passed without opposition. The effect of the noble Lords’ amendment would be to annul the provisions for judicial review within the 2013 order, undermining the intention of Parliament.
9.45 pm
Now, to the relief of the noble Lord, Lord Beecham, I will turn to the residence test. Amendment 177 seeks to prevent a residence test being applied to applicants for legal aid in any proceedings for judicial review. The Government’s proposed residence 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. Noble Lords will be aware, and there has been reference to this in the debate, that the test was recently challenged by way of judicial review. The High Court handed down judgment on 15 July—there has been reference to the judgment of Sir Alan Moses, Lord Justice Moses as he then was—and found in favour of the claimant. The position is that we are appealing the judgment and therefore it would be inappropriate for me to comment too much on the judgment in relation to the ongoing proceedings.
However, noble Lords will also no doubt be aware that, following this ruling, the draft order introducing the residence test has been withdrawn. The amendment would therefore introduce an exception to the residence test in the abstract, as it were. The Government’s proposed residence test is not the subject of today’s debate. I submit that the appropriate place to consider any exceptions would be while considering the test as a whole, rather than in isolation and in the context of a free-standing provision for judicial review. None the less, in view of the fact that arguments have been deployed, and in deference and respect to those arguments, I should say that we do not agree that an exception should be made to the residence test for all judicial review proceedings.
Having listened carefully to those who responded to our consultation and the views of many in Parliament, including the Joint Committee on Human Rights—to which the noble Baroness, Lady Lister, referred and of which she is a distinguished member—we put in place a number of exceptions to the test for those whom we identified as particularly vulnerable individuals, such as asylum seekers and refugees. We also put in place exceptions for certain types of cases, broadly relating to an individual’s liberty, where the individual is particularly vulnerable or where the case relates to the protection of children. These included focused exceptions for judicial review cases concerning liberty and certain immigration and asylum matters. However, in line with the principles that underpinned the test, we considered that, in general, applications for legal aid for judicial review proceedings should be subject to the residence test. We believe it is a fair test that will 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 UK. We do not consider that that approach is in some way typical of the Tea Party, or whatever allegation is being made against this Government.
On the question of legal aid generally, the approach of Her Majesty’s Opposition has been to oppose all cuts in legal aid at all stages of LASPO and in a series of debates on statutory instruments. It is all very well taking that posture but recently Her Majesty’s Opposition have indicated that they will not be reversing those legal aid cuts. Although, of course, they are entitled to change their mind, some of the argument that is being increasingly deployed is beginning to look a little like posturing. This Government have had to deal with some extremely difficult financial challenges. Having to make cuts—not a welcome thing to have to do—we have done our best to identify those cuts that can be made with the least possible harm to the individuals. I do not suggest that in every case we have avoided all hardship but it has been an attempt to try to use those limited resources as best we can. We are not persuaded of the case for any amendments to these clauses.