Commons Library analysis: Legal aid in England and Wales for civil claims against UK armed forces

This Commons Library briefing describes the availability of legal aid for civil claims in England and Wales, as it may relate to claims brought against members of UK armed forces.

It examines

• current eligibility criteria for legal aid, in particular the merits test
• the development of the Ministry of Justice’s (MoJ) plans to introduce a residence test for civil legal aid
• the commentary on that proposed test from the Joint Committee on Human Rights, the Justice Committee and others and
• challenges in the courts to the legality of the test.Should legal aid be available for people outside the UK to bring civil claims against UK forces in courts in England and Wales?

Should legal aid be available for people outside the UK to bring civil claims against UK forces in courts in England and Wales?

The availability of legal aid for people outside the UK to bring claims in England and Wales against UK armed forces for actions overseas has long been controversial. For some, the availability of legal aid in these circumstances is (in their view) essential to ensuring that human rights are respected, standards upheld and members of the armed forces can be held accountable through the courts for their actions.  For others, this represents (in their view) an abuse of process and a waste of taxpayers’ money.

Several well-publicised cases in recent years have brought these concerns to the fore.

Are spurious cases being brought?

The debate was reignited on 22 January 2016 when, on Facebook, the Prime Minister, David Cameron, said that, to clamp down on the “industry” of firms making “spurious” claims against members of UK armed forces, the National Security Council would oversee a number of measures, including speeding up the introduction of a residence test for civil legal aid.

1. Our armed forces are rightly held to the highest standards, but our troops must know that when they get home from action overseas this Government will protect them from being hounded by lawyers over claims that are totally without foundation.

It is not yet clear which cases the Prime Minister has in mind when he describes them as “spurious”. Such cases (if they exist) may not be funded by legal aid.  As the Prime Minister’s comments recognise, they may be funded by “no win, no fee” agreements.

Reacting to the Prime Minister’s remarks, Leigh Day (a law firm which has represented several clients in cases against the UK government) argued that bringing cases before the courts was necessary to identify instances of abuse, damage and loss and nobody could be above the law.

How do legal aid eligibility rules weed out weak cases?

Broadly speaking, the eligibility criteria for civil legal aid in England and Wales are intended, through the merits test, to weed out those cases with poor prospects of success.

Will there be a residence test for legal aid?

The MoJ intends to introduce by regulations a residence test for civil legal aid which would require that (with certain exceptions) people applying for legal aid must have been in the UK for at least 12 months.

The MOJ’s plans for the residence test were challenged in the courts. In November 2015, the Court of Appeal overturned the High Court ruling of July 2014 that the regulations were beyond the scope of the powers in the Legal Aid Sentencing and Punishment of Offenders Act 2012 and that the test was discriminatory and unlawful.

Other briefings on issues related to those in this briefing are available from Parliament’s topic pages for legal aid, international law and Iraq.