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||Neutral Citation Number:  EWHC 35 (Admin)
||Case No: CO/2365/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||22nd January 2015
B e f o r e :
LORD JUSTICE FULFORD
MRS JUSTICE LANG DBE
|| THE QUEEN
on the application of
RIGHTS OF WOMEN
- and -
||THE LORD CHANCELLOR AND
SECRETARY OF STATE FOR JUSTICE
Nathalie Lieven QC and Zoe Leventhal (instructed by The Public Law Project) for the Claimant
Neil Sheldon and Alasdair Henderson (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 12th December 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Lang:
- The Claimant applies for judicial review to quash regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 ("the CLA(P) Regulations 2012"), either wholly or in part, on the ground that the Defendant exceeded the statutory powers conferred upon him by section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") when he made the Regulations on 12th December 2012.
- LASPO 2012 removed legal aid funding from parties to private family law proceedings, other than in certain specified categories, set out in Schedule 1 to the Act, as part of a programme of reduction in publicly funded legal services. Legal aid has been preserved for victims of domestic violence seeking protective court orders and/or who are party to family law proceedings against the perpetrator of the violence. The reason for preserving legal aid in these categories was a concern that victims of domestic violence may be vulnerable to intimidation, and disadvantaged in legal proceedings, if they are forced to represent themselves against the perpetrator of the violence.
- Regulation 33 of the CLA(P) Regulations 2012 specifies the types of supporting evidence of domestic violence which must be provided in support of an application for legal aid under paragraph 12. The issue in this claim is whether procedural regulations have been unlawfully used to introduce more restrictive criteria for eligibility than those found in LASPO 2012, and whether they frustrate the statutory purpose, by prescribing the acceptable types of supporting evidence too rigidly and narrowly, thus excluding many women who ought to be eligible for legal aid under the terms of LASPO 2012.
- The Claimant is a registered charity which gives free legal advice on family law (among other areas). It also campaigns and provides education and training on women's rights, with a particular specialism in gender-based violence. It has been fully engaged in the recent changes to civil legal aid.
- Permission was granted by Burnett J. on a renewed application, after refusal by Cranston J. on the papers. Initially the claim also included grounds alleging breaches of the Human Rights Act 1998. However, permission was refused on those grounds by Burnett J.
The Statutory Scheme
Legal Aid, Sentencing and Punishment of Offenders Act 2012
- Civil legal aid is now governed by Part 1 of LASPO 2012, which came into force on 1st April 2013. Civil legal aid covers the provision of advice and assistance as well as representation. LASPO 2012 specifies the categories of case for which legal aid is available. Thus, it reverses the position under the Access to Justice Act 1999, and its predecessors, which provided for civil legal aid to be available in relation to any matter not expressly excluded.
- Section 1 of Part 1 of LASPO 2012 provides that the Lord Chancellor "must secure that legal aid is made available in accordance with this Part". "Legal aid" means, so far as it material to this case:
"(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),
- Section 9 provides as follows:
"(1) Civil legal services are to be available to an individual under this Part if –
(a) they are civil legal services described in Part 1 of Schedule 1, and
(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
- The civil legal services which are described in Part 1 of Schedule 1 include services which are provided to actual or potential victims of domestic violence.
- Paragraph 11, entitled "Family homes and domestic violence", makes provision for civil legal services in relation to home rights, occupation orders, non-molestation orders, and injunctions following assault, battery or false imprisonment arising out of a family relationship.
- Paragraph 12, entitled "Victims of domestic violence and family matters", makes provision for:
"(1) Civil legal services provided to an adult ("A") in relation to a matter arising out of a family relationship between A and another individual ("B") where –
(a) there has been, or is a risk of, domestic violence between A and B, and
(b) A was, or is at risk of being, the victim of that domestic violence."
- "Domestic violence" is defined in paragraph 12(9) as "any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other" (underlining added).
- This definition was widened by amendment to add the words underlined, to bring it into line with the UK cross-governmental definition of domestic violence, adopted following a programme of action against violence against women by the Home Secretary and in the light of the judgment of Lady Hale (with whom Lord Hope and Lord Walker agreed) in the Supreme Court in Yemshaw v Hounslow BC  UKSC 3, at . The cross-departmental definition defines "controlling" and "coercive" behaviour. The definition is consistent with the approach adopted under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which has been ratified by the UK and applied by the ECtHR, see Oduz v Turkey (2010) 50 EHRR 28.
- Paragraph 12(7) provides that there is a "family relationship" between two people if they are associated with each other. This has the same meaning as under section 62 of the Family Law Act 1996 which includes spouses, civil partners, cohabitants, relatives, those in the same household, subject to exceptions.
- Paragraph 12(8)(a) defines a "matter arising out of a family relationship" as including "matters arising under a family enactment". A "family enactment" is one of a list of statutory provisions set out under paragraph 12(9)(a)-(o). In summary, they include:
a) Advice and representation in relation to divorce and financial relief and enforcement.
b) Advice and representation on applications for transfers of tenancies.
c) Disputes over children, including child arrangement orders (formerly contact and residence); prohibited steps orders to protect children against abduction or harmful contact with a parent; child maintenance and financial orders.
- Paragraph 13, entitled "Protection of children and family matters", makes provision for civil legal services for an adult in proceedings relating to a child who is at risk of abuse. "Abuse" is defined as "physical or mental abuse including sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation".
- Before granting legal aid to an applicant who is eligible for civil legal services under Part 1 of Schedule 1, the Director of Legal Aid Casework (appointed under section 4) must also determine "that the individual qualifies for the services" (section 9(1)(b)).
- Section 11, entitled "Qualifying for civil legal aid", provides that the Director must determine whether an individual qualifies for civil legal services in respect of financial resources and overall merits.
- Financial eligibility for legal aid is governed by section 21 and the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013.
- By subsection 11(2), the Lord Chancellor, in setting merits criteria, must consider the circumstances in which it is appropriate to make civil legal services available under Part 1, and consider the extent to which the criteria ought to reflect the factors in subsection (3).
- The factors set out in subsection (3) are:
"(a) the likely cost of providing the services and the benefit which may be obtained by the services being provided,
(b) the availability of resources to provide the services,
(c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services under this Part,
(d) the importance for the individual of the matters in relation to which the services would be provided,
(e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,
(f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,
(g) if the services are sought by the individual in relation to a dispute, the individual's prospects of success in the dispute,
(h) the conduct of the individual in connection with services made available under this Part or an application for such services,
(i) the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and
(j) the public interest."
- Subsection 11(5) provides:
"The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings."
- The merits criteria are set out in the Civil Legal Aid (Merits Criteria) Regulations 2013.
- Section 12 is the enabling power under which the CLA(P) Regulations 2012 were made. It provides:
(2) Regulations may make provision about the making and withdrawal of determinations under section 9 and 10.
(3) Regulations under subsection (2) may, in particular, include –
(a) provision about the form and content of determinations and applications for determinations,
(b) provision permitting or requiring applications and determinations to be made and withdrawn in writing, by telephone or by other prescribed means,
(c) provision setting time limits for applications and determinations,
(d) provision for a determination to be disregarded for the purposes of this Part if made in response to an application that is made otherwise than in accordance with the regulations,
(e) provision about conditions which must be satisfied by an applicant before a determination is made,
(f) provision about the circumstances in which a determination may or must be withdrawn,
(g) provision requiring information and documents to be provided,
(h) provision requiring individuals who are the subject of a determination to be informed of the reasons for making or withdrawing the determination, and
(i) provision for giving information to individuals who do not qualify for civil legal services under this Part about alternative ways of obtaining or funding legal services.
- Section 10 concerns the funding of "exceptional cases" which do not come within the scope of Section 9. It provides:
"(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.…."
- Section 41 makes general provision in respect of the power to make orders, regulations and directions under LASPO 2012. Regulations are subject to either negative or affirmative resolution procedure, depending on the section under which they are made. Regulations made under section 12 are subject to negative resolution procedure.
Civil Legal Aid (Procedure) Regulations 2012
- The CLA(P) Regulations 2012 were made by the Defendant on 12th December 2012 and came into force on 1st April 2013. Following a review by the Defendant, in which the Claimant (among others) made representations, the 2012 Regulations were amended by the Civil Legal Aid (Procedure) (Amendment) Regulations 2014. This occurred in parallel with the pre-action correspondence to this claim and so the matters raised therein were considered, so the Defendant says, as part of the review. The 2014 Regulations were laid before Parliament on 27th March 2014 and came into force on 22nd April 2014.
- Regulation 33 as amended provides as follows (the 2014 amendments are set out in underlined text and the deleted text is struck through):
"33. Supporting documents: domestic violence
(1) An application for civil legal services described in paragraph 12 of Part 1 of Schedule 1 to the Act must include evidence of the domestic violence or the risk of domestic violence.
(2) For the purpose of para (1), the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms—
(a) a relevant unspent conviction for a domestic violence offence;
(b) a relevant police caution for a domestic violence offence given within the twenty four month period immediately preceding the date of the application for civil legal services;
(c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;
(d) a relevant protective injunction which is in force or which was granted within the twenty four month period immediately preceding the date of the application for civil legal services;
(e) an undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) —
(i) by the individual ("B") with whom the applicant for civil legal services ("A") was in a family relationship giving rise to the need for the civil legal services which are the subject of the application; and
(ii) within the twenty four month period immediately preceding the date of the application for civil legal services,
provided that a cross-undertaking was not given by A;
(ea) evidence that B is on relevant police bail for a domestic violence offence
(f) a letter from
the person appointed to chair any person who is a member of a multi-agency risk assessment conference [MARAC] confirming that—
(i) A was referred to the conference as a
high risk victim of domestic violence; and
(ii) the conference has, within the twenty four month period immediately preceding the date of the application for civil legal services, put in place a plan to protect A from a risk of harm by B;
(g) a copy of a finding of fact, made in proceedings in the United Kingdom within the twenty four month period immediately preceding the date of the application for civil legal services, that there has been domestic violence by B giving rise to a risk of harm to A;
(h) a letter or report from a health professional who has access to the medical records of A confirming that
the that professional or another health professional—
(i) has examined A in person within the twenty four month period immediately preceding the date of the application for civil legal services; and
(ii) was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence;
(iii) has no reason to believe that A's injures or condition were not caused by domestic violence;
(i) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the twenty four month period immediately preceding the date of the application, A was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment);
(j) a letter or report from a domestic violence support organisation in the United Kingdom confirming—
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, admitted for a period of twenty four hours or more to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services (and, where relevant, that period commences with the date on which A left the refuge), admitted to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;
(ii) the dates on which A was admitted to and, where relevant, left the refuge; and
(iii) that A was admitted to the refuge because of allegations by A of domestic violence.
(k) a letter or report from a domestic violence support organisation in the United Kingdom confirming—
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, refused admission to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence, on account of there being insufficient accommodation available in the refuge; and
(ii) the date on which A was refused admission to the refuge;
(l) a letter or report from—
(i) the person to whom the referral described below was made;
(ii) the health professional who made the referral described below; or
(iii) a health professional who has access to the medical records of A,
confirming that there was, within the twenty four month period immediately preceding the date of the application for civil legal services, a referral by a health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence;
(m) a relevant domestic violence protection notice issued under section 24 of the Crime and Security Act 2010, or a relevant domestic violence protection order made under section 28 of that Act, against B within the twenty four month period immediately preceding the date of the application for civil legal services;
(n) evidence of a relevant court order binding over B in connection with a domestic violence offence, which is in force or which was granted within the twenty four month period immediately preceding the date of application for civil legal services.".
- The only other specific evidential requirements imposed by the CLA(P) Regulations 2012 are:
i) Applications in damages claims. Regulation 32 requires that the application must include an estimate of likely damages, for which requirements are set out; and
ii) Applications for the protection of children under paragraph 13 of Schedule 1. Regulation 34, entitled "Supporting documents: protection of children" requires evidence of the risk of abuse must be provided in one or more the prescribed forms, which are similar to those in regulation 33.
The Claimant's Grounds
- The Claimant submits that regulation 33 is ultra vires section 12(2) of LASPO 2012. It only empowers the Defendant to "make provision for the making and withdrawing of determinations" under section 9, which sets out the criteria for eligibility, by reference to paragraph 12 of Schedule 1. It is apparent from the types of provision listed in section 12(3) that the regulations are intended to be procedural in nature. However, regulation 33 imposes inflexible evidential requirements which go beyond the eligibility criteria in section 9 and paragraph 12, and which have the effect of wrongly excluding applicants from the scope of legal aid.
- Further or alternatively, the Claimant submits that regulation 33 imposes requirements or conditions which thwart or frustrate the statutory purpose, applying the principle in Padfield v. Minister of Agriculture  AC 997. It impairs the right of access to legal advice and the courts in family proceedings by women (and their children) who have suffered physical and/or psychological harm as a result of domestic violence.
- The Claimant points to the following features of regulation 33 in support of these submissions:
a) An absolute time limit of 24 months on the evidence of domestic violence which can be relied upon, without any discretion to waive this.
b) Although it is theoretically possible for victims of emotional or psychological abuse to obtain the required evidence, in reality it is exceptionally unlikely. Financial abuse and controlling/coercive behaviour are not provided for at all.
c) It will be virtually impossible in practice for those who are at risk of domestic violence, but have not yet suffered it, to obtain the required evidence.
d) Only evidence which has come to the attention of the courts or statutory agencies can be relied upon.
e) There is no residual discretion on the part of the Legal Aid Agency to accept evidence which does not meet the prescribed conditions.
- In response, the Defendant submits that the terms of the primary legislation are clear. They confer on the Defendant a power to make regulations imposing (inter alia) evidential requirements on applicants who claim legal aid as victims, or potential victims, of domestic violence. That is what Regulation 33 does and it is clearly intra vires the enabling power.
- The Claimant has failed accurately to characterise the statutory intention expressed by LASPO 2012. The Act does not require that every individual who falls within the statutory definition of a victim of domestic violence must be granted legal aid, nor does it express any such intention. The legislative intention is to provide legal aid to those victims of domestic violence who require assistance because they will be intimidated or otherwise materially disadvantaged by having to face their abuser in court. The logical corollary of that intention is that those who do not require legal aid for this purpose do not receive it.
- There is no inconsistency between the statutory definition of domestic violence and a regulation making power which empowers the Secretary of State to make regulations to achieve the effective implementation of the system for granting legal aid to those who fall within the definition. The statutory scheme simply reflects the need to distinguish, in a fair and practical manner, between those who are entitled to legal aid under LASPO 2012 and those who are not. Section 12 envisages that evidential requirements will be one of the means for achieving that objective. Imposing such requirements inevitably means that lines will have to be drawn, and Parliament has entrusted the drawing of those lines to the Secretary of State.
Evidence of the Scheme in Operation
- The Claimant relied on a considerable volume of evidence in support of its contention that the evidential requirements in regulation 33 were wrongly excluding genuine victims of domestic violence from obtaining legal aid in family law proceedings. The evidence comprised individual cases studies, with supporting witness statements and documentation; surveys; reports and witness statements from legal practitioners and organisations with direct experience of the problems faced by victims of domestic violence, and statistics showing the number of legal aid applications granted under the new scheme.
- Although usually the Court would expect one or more directly affected individuals to act as Claimant, to allow a detailed assessment of the evidence in a particular case, I acknowledge that has not been feasible in this case. On a number of occasions, the Public Law Project has commenced the pre-action protocol procedure in respect of an applicant who has been refused legal aid because she cannot fulfil the requirements in regulation 33. On each occasion, the Legal Aid Agency has responded by granting her legal aid, thus bringing the prospective claim to an end.
- Whilst I was not in a position to reach any concluded views about the evidence, I am satisfied that the Claimant has shown a good arguable case that some victims of serious domestic violence, who are genuinely in need of legal aid, cannot fulfil the requirements of regulation 33. Typically, victims are excluded in circumstances where serious domestic violence led to a complete breakdown of the relationship, and then, more than 24 months later, there is an application by the perpetrator of the violence for contact with a child of the family, or ongoing contact arrangements break down. By the date of application for legal aid, their evidence of domestic violence is older than 24 months, but they remain fearful of their former partner.
The Grounds of Challenge
- I turn first to consider the Claimant's submission that regulation 33 is ultra vires section 12 of LASPO 2012 because it extends beyond merely procedural matters and imposes requirements which are not to be found in section 9 or paragraph 12 of Schedule 1 to LASPO 2012.
- The legal principles are succinctly expressed in Bennion on Statutory Interpretation (6th ed.) at p.227:
"Section 28. Ultra vires delegated legislation
Any provision of an instrument constituting delegated legislation is ineffective if the provision goes beyond the totality of the legislative power which (expressly or by implication) is conferred on the delegate by the enabling Act or Acts. The provision is then said to be ultra vires (beyond the powers). This applies even where the instrument has been sanctioned by confirming authority…."
- In a much-cited passage from Commissioners of Customs & Excise v. Cure & Deeley Ltd  1 QB 340, Sachs J. said at 367:
"To my mind a court is bound before reaching a decision on the question whether a regulation is intra vires to examine the nature, objects, and scheme of the piece of legislation as a whole, and in the light of that examination to consider exactly what is the area over which powers are given by the section under which the competent authority is purporting to act. In taking that view I respectfully apply the line of approach adopted by Lord Greene in the above cited cases, where he referred to the need for the acts of the competent authority to fall within the four corners of the powers given by the legislature."
- The Court was referred to cases in which those principles had been applied: Utah Construction and Engineering Pty v. Pataky  AC 629; Raymond v. Honey  1 AC 1; R v. Secretary of State for the Home Department ex parte Saleem  1 WLR 443.
- In my judgment, upon reading LASPO 2012, it is apparent that Parliament intended the framework for the provision of legal aid to be set out in the statute, and the detailed provisions to be set out in regulations, as has been the case under previous legal aid acts. There are many regulation-making powers conferred on the Lord Chancellor throughout Part 1. The purpose of the regulations is to supplement the provisions of the enabling Act. There would be no need for regulations if all the provisions could conveniently be incorporated in the Act. It follows that, in principle, it is not unlawful for the regulations to include matters which are not to be found in the Act, provided that those matters do not exceed "the totality of the legislative power which (expressly or by implication) is conferred on the delegate by the enabling Act" (Bennion supra).
- The breadth of scope of the delegated legislation under LASPO 2012 is confirmed by section 41 which provides:
"(1) Orders, regulations and directions under this Part—
(a) may make different provision for different cases, circumstances or areas,
(b) may make provision generally or only for specified cases, circumstances or areas, and
(c) may make provision having effect for a period specified or described in the order, regulations or direction.
(3) Orders and regulations under this Part—
(a) may provide for a person to exercise a discretion in dealing with any matter,
(b) may make provision by reference to a document produced by any person, and
(c) may make consequential, supplementary, incidental, transitional or saving provision."
- Section 12 subsection (2) empowers the Defendant to make regulations which "make provision about the making and withdrawal of determinations under sections 9 and 10". In my view, subsection (2) confers a wide power, and is not expressly or impliedly limited to procedural matters. Subsection (3) sets out a list of the types of provision which may be included. It is important to note that the list is non-exhaustive. Within the list, much of the provision is procedural in nature, but not exclusively so. In my view, the following sub-paragraphs are not limited to procedural matters, either expressly or impliedly:
"(e) provision about conditions which must be satisfied by an applicant before a determination is made," and
"(f) provision about the circumstances in which a determination may or must be withdrawn."
- The CLA(P) Regulations 2012 are called "Procedure" Regulations, and are made pursuant to several different sections of LASPO 2012. They do indeed include many procedural requirements, but a significant number of them go beyond procedural matters. For example, regulation 42, made pursuant to section 12(3)(f), which sets out the circumstances in which a determination may be withdrawn. At the hearing, counsel identified those which they believed were made under section 12(3)(e) as "conditions". One example was regulation 40 which imposes requirements on applicants and providers to report certain matters to the Director. Failure to do so may result in sanctions.
- Turning to regulation 33, it is plain that it makes provision about the making of determinations under section 9(1) (applying the words of subsection (2)). Regulation 33 is headed "Supporting documents: domestic violence" and paragraph (1) requires an applicant "to include evidence of the domestic violence or risk of domestic violence". The requirement to provide evidence to prove that the applicant falls within the criteria in paragraph 12 is procedural in nature. In my view, it plainly comes within the scope of sub-paragraph 3(g):
"(g) provision requiring information and documents to be provided."
I consider the Defendant is correct to submit that section 12(3)(g) envisages that evidential requirements may be imposed in the form of regulations. The essence of the Claimant's complaint is that the "information and documents to be provided" have been too narrowly defined in regulation 33 and are overly prescriptive. This is a challenge to the manner in which the power has been exercised, not the scope of the power.
- I accept the Claimant's submission that the evidential requirements in regulation 33, such as the time limit of 24 months, do impose conditions which have to be satisfied by the applicant before she can obtain legal aid, and those conditions are not found in the Act. I consider that the Defendant has express power to include such conditions in the Regulations under section 12(3)(e). In my view, these conditions are procedural in nature, because they relate to the provision of evidence. Procedural requirements, such as time limits, will frequently affect an applicant's ability to proceed with a substantive claim or in this instance, obtain legal aid. But even if the Claimant is correct to characterise them as substantive, I consider that the Defendant had power to make them under section 12(2), for the reasons given above.
- The Claimant's alternative ground is that the evidential requirements in regulation 33 thwart or frustrate the Act's statutory purpose of providing legal aid for women who have suffered domestic violence, in accordance with the terms of paragraph 12 of Part 1 of Schedule 1.
- The Court was referred to a passage in the speech of Lord Bingham in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd  2 AC 349, at 381B:
"Mr Bonney for Spath Holme rightly reminded us that no statute confers an unfettered discretion on any minister. Such a discretion must be exercised so as to promote and not to defeat or frustrate the object of the legislation in question. Counsel relied on Padfield v. Minister of Agriculture, Fisheries and Food  AC 997, 1030 where Lord Reid said:
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court." "
- In Utah Construction and Engineering Pty v. Pataky  AC 629, Lord Guest gave the judgment of the Board of the Privy Council stating at 640C:
"Their lordships adopt with approval the statement in the judgment of the High Court of Australia in Shanahan v Scott relating to the construction of a provision similar to section 22(1) of the Scaffolding and Lifts Act 1912-1960, to the following effect:
"The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." "
- This passage from Utah was cited by the Divisional Court in R (on the application of the Public Law Project) v. The Secretary of State for Justice & Anor  EWHC 2365 (Admin) when holding that the Defendant's introduction of a UK residence test as a condition of eligibility for civil legal services in Part 1 of Schedule 1 was unlawful because it extended the scope and purpose of the statute and was accordingly outwith the power conferred by section 9, as supplemented by section 41. The Court found that the purpose lying behind Part 1 of Schedule 1 was to provide legal aid to cases judged to be of the greatest need (per Moses LJ at ) whereas the aim of the residence test was to restrict the distribution of legal aid to those who have the closest connection with the United Kingdom (per Moses LJ at ). Moses LJ said, at :
"The power to add, vary or omit services under s.9 as supplemented by s.41 is to serve and promote the object of the statute. The power cannot be construed in a way which widens the purposes of the Act or departs from or varies its primary objective (see, e.g., Utah Construction and Engineering Pty v. Pataky  AC 629 at 640 and Bennion on Statutory Interpretation 5th edition section 59, pages 262-263). The discretion is conferred to promote the policy and objects of the Act and not to introduce a different objective."
- In this case, Mr Parsons, Head of Family and Immigration Legal Aid Policy at the Ministry of Justice, made a witness statement in which he said:
"3. From the outset the legislative and policy intent was to ensure that those victims of domestic violence who genuinely required assistance in court proceedings were able to obtain legal aid. This is evident from the consultation paper and the Government's response to it. The MOJ also made this clear in subsequent actions, including departmental impact assessments and when conducting further reviews. These informed the secondary legislation governing the forms of acceptable evidence of domestic violence for the purpose of determining eligibility for legal aid.
4. On 10th November we published a consultation paper entitled "Proposals for the Reform of Legal Aid in England and Wales. In relation to civil legal aid, the paper explained:
"4.2.1 The scheme in its current form is no longer sustainable financially if the Government is to meet its commitment to reduce the public financial deficit. We have therefore had to make tough decisions about where best to target resources."
5. The paper proposed to specify in legislation the areas where legal aid would continue to be available to litigants. It set out the areas of civil and family law proposed for retention in the legal aid scheme and the areas proposed for exclusion from the legal aid scheme.
6. The paper proposed to retain legal aid for domestic violence and forced marriage cases, such as those involving non-molestation orders and occupation orders. However "given the need to direct resources at the issues of highest importance in a fair and balanced way", it was considered that legal aid would not be routinely justified for ancillary relief and private law family and children proceedings (4.67). This was subject to an exception, in recognition of the fact that "where there is an ongoing risk of physical harm from domestic violence, different considerations apply". In relation to such cases, the Ministry of Justice consider that "the provision of legal aid is justified where the client may be unable to assert their rights and may face intimidation because of risk of harm" (4.67).
7. The paper emphasised:
"While we are clear that protection of those at risk of domestic violence is a priority, it is necessary to ensure that there is clear objective evidence of the need for protection in the main proceedings."...
8. In June 2011 the Government published its response to the consultation. The response explained that the criteria for applications in family law cases would be expanded to include additional criteria:
"23. The Government accepts that, to ensure that victims of domestic violence are protected, the criteria for the domestic violence exception proposed in the consultation needs to be widened, whilst maintaining the requirement for objective evidence of domestic violence. We have therefore decided to accept some additional circumstances as evidence of domestic violence, so that the criteria should target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence."
9. The Civil Legal Aid (Procedure) Regulations 2012 were laid before Parliament on 17 December 2012. Regulation 33 set out the evidence that would be required in order to qualify for legal aid as the victim of domestic abuse.
10. An impact assessment dated 12 December 2012 explained the policy objectives relating to the evidence requirements set out in Regulation 33 in the following terms:
"The Government has made exceptions to the blanket rule that legal aid will be out of scope for private family matters as there is recognition that for these vulnerable individuals facing the perpetrator in court can be traumatic and so need extra help asserting these rights. So as to target this legal aid at the right people the Government requires victims to produce evidence of the need for objective evidence of them being at risk of domestic violence. The evidence list has been drafted taking account of the need for objective evidence of the need to target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence…"
11. The Regulations were subject to the negative resolution procedure. They were debated in the House of Lords on 27 March 2013. A Motion of Regret was moved by Baroness Scotland, but no motion was made to reject the Regulations.
12. The 2012 Procedure Regulations came into force on 1 April 2013. Following this, in accordance with the Secretary of State's commitment to Parliament, the Ministry of Justice carried out a review of the impact of regulation 33.
14. As a result of that review, the Secretary of State decided to increase the forms of acceptable evidence specified under Regulation 33. The additional forms of evidence were included in the Civil Legal Aid (Procedure) Amendment Regulations 2014 which were laid before Parliament on 27 March 2014…"
- In my view, the primary purpose of LASPO 2012 was to make substantial reductions in civil legal aid expenditure, to reduce the burden on the taxpayer and the public purse, principally by removing certain types of legal proceedings from the scope of legal aid altogether. It is significant that, whereas previous legal aid legislation provided for universal legal aid, subject to exclusions, LASPO 2012 only makes civil legal aid available for specified and limited categories of cases. Those categories were selected on the basis of need, as found by the Court in the Public Law Project case, and where ECHR and treaty obligations required legal aid to be provided.
- Parliament intended to remove civil legal aid in private family law proceedings, save for exceptional categories of cases. Those categories of cases were to be specifically identified in legislation; not left to the discretion of legal aid officials on a case by case basis. Victims of domestic violence who were parties to private family law proceedings were identified as an exceptional category, in certain circumstances and subject to the fulfilment of certain conditions.
- A secondary purpose of the Act was to encourage the use of alternative means of dispute resolution instead of legal proceedings. Subsection 11(5) requires that the merits criteria "reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings". This principle was particularly applied to family proceedings, for example, by providing legal aid for mediation in family disputes under paragraph 14 of Part 1 of Schedule 1, whilst removing it for legal proceedings.
- I consider that it was consistent with the statutory purpose of reducing the scope of legal aid, and removing it from private family law proceedings, that the Defendant would seek to ensure that the domestic violence exception was strictly confined to its intended scope and not exploited as a route to obtaining legal aid for family law proceedings which had been taken out of scope for most people.
- The rationale given by the Defendant for paragraph 12 of Part 1 of Schedule 1 was that victims of domestic violence ought to be prioritised in terms of need, where "there is an ongoing risk of physical harm from domestic violence" and "the client may be unable to assert their rights and may face intimidation because of risk of harm" (Consultation paper, 10th November 2010, paragraph 4.67, quoted in Mr Parson's statement at ).
- The Defendant stated from the outset that, "it is necessary to ensure that there is clear objective evidence of the need for protection in the main proceedings" (Consultation paper, 10th November 2010, paragraph 4.68, quoted in Mr Parson's statement at ). The evidence of the need for protection was to be verifiable from an approved independent source, to prove it was genuine. To prove that it was a current need, the evidence had to date from within the 12 month period prior to the application. (The period of 12 months was increased to 24 months in response to concerns raised in Parliament). A current court order made in respect of domestic violence or an unspent criminal conviction for domestic violence would also be treated as evidence of a current need for protection (Consultation paper 10th November 2010, paragraph 4.67 and Consultation response, June 2011, paragraphs 37 to 42).
- Mr Parsons stated at paragraph 33, "[t]he policy intention is to provide legal aid where an individual will be materially disadvantaged by facing their abuser in court, not simply to provide open-ended access to legal aid for domestic violence. The time limit provides a test of the on-going relevance of the abuse".
- Setting out the evidential requirements in regulations, rather than in the primary legislation, meant that the detail of the requirements could be amended more quickly and easily in future. The CLA(P) Regulations 2012 were reviewed and amended in 2014.
- Other methods of establishing a genuine current need for protection could have been chosen. For example, the Defendant could have emulated the approach taken by the Home Office under the Immigration Rules in establishing whether applicants for indefinite leave to remain in the UK are genuine victims of domestic violence. The Immigration Rules do not prescribe the evidence to be provided in support. The Home Office has issued guidance on the types of evidence which will generally be required, but officers retain a discretion to receive other forms of evidence. Ultimately they are required to make a decision on a case by case basis.
- In contrast, under LASPO 2012, the Defendant, in the exercise of his discretion, adopted a set of prescriptive and inflexible evidence requirements which do not leave any residual discretion to legal aid officials. The Claimant's evidence demonstrates that this approach may well exclude meritorious applications. However, the Defendant had legitimate reasons for adopting this approach. First, the volume of applications would make it burdensome and expensive to have individualised eligibility assessments by officials. Second, unlike the immigration cases, eligibility for legal aid has to be assessed by independent solicitors and other legal aid providers when clients first come to them for advice, as well as by officials at a later stage. The evidence requirements provide clarity and consistency. In the case of 'legal help', providers make the funding decision and bear the risk should there be any error. Their assessment is only checked after they have completed their work, and they are refused payment if the legal aid agency considers that the applicant was not in fact eligible. Also, Cris McCurley, a family solicitor, explained that if solicitors make applications for legal aid that are subsequently refused this affects their Key Performance Indicators with the Legal Aid Agency and potentially threatens their contracts.
- I accept the submission made by counsel for the Defendant that, wherever evidence requirements are imposed, there will always be a risk that a meritorious applicant fails because she cannot produce the evidence to prove the facts upon which she relies. A meritorious applicant might also fail in a more flexible, individualised assessment if she could not produce sufficient evidence. It also seems to me inevitable that it will be more difficult to prove a risk of domestic violence where no violence has actually taken place, but I do not accept the Claimant's submission that the evidential requirements make it impossible to prove risk, as it could be evidenced in letters or reports from a multi-agency risk assessment conference, a social services department or a health professional.
- I have had regard to the observations of Lord Neuberger, when considering eligibility for income support, in R (RJM) v Secretary of State for Work and Pensions  1 AC 311, at :
"The fact that there are grounds for criticising, or disagreeing with these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified."
- Despite the justifiable criticisms of regulation 33, I do not consider that the Defendant's chosen method of establishing eligibility was an exercise of discretion that went so far as to thwart or frustrate the purpose of the Act. It was a legitimate means of giving effect to the Act's intention to take family law proceedings outside the scope of legal aid, whilst preserving legal aid for the exceptional category of victims of domestic violence in need of protection in family law proceedings. Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the Defendant, and ultimately Parliament, to address.
- The Claimant submits that the refusal of legal aid to victims of domestic violence denies them access to justice. Access to the court is a fundamental right and cannot be removed other than by express statutory provision. The Court was referred to Raymond v. Honey  1 AC 1; R v. Secretary of State for the Home Department ex parte Leech  QB 198; R v. Lord Chancellor ex parte Witham  QB 575; R v. Secretary of State for the Home Department ex parte Saleem  1 WLR 443.
- These cases all concerned restrictions on access to legal advice or courts. I do not accept that an applicant who is refused legal aid is in the same position as the claimants in those cases, as there is no restriction on her right to obtain legal advice or participate in legal proceedings, with or without representation. In Witham (a challenge to the rules governing court fees) Laws LJ explained the distinction at 586D-E:
"Mr. Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the state which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers."
- There is no general right to legal aid, either at common law or under Article 6 ECHR. As the ECtHR explained in Steel and Morris v. United Kingdom (2005) 41 EHRR 22 at -:
"59. The Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side.
60. Article 6(1) leaves to the state a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure.
61. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively.
62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings. Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary."
- This point has been recently considered in R (Howard League for Penal Reform) v. Lord Chancellor  EWHC 709 the Divisional Court held (per Cranston J. at  – ):
"46. The claimants contend that in denying prisoners advice and assistance under the criminal legal aid system the Regulations give rise to an unacceptable risk of interference with their rights of access to justice, guaranteed by the common law and article 6 ECHR…
47. This ground is not arguable. There is no corollary to the common law right of access to a court of a right to legal aid: R v Lord Chancellor ex parte Witham  QB 575, 581. The Strasbourg article 6 ECHR jurisprudence is clear that the provision of legal aid of this character is not mandatory, except in exceptional cases: Airey v Ireland (1979-80) 2 EHRR 305; Hooper v United Kingdom  41 EHRR 1…"
- However, applying the principle established by the ECtHR in Airey v. Ireland (1979) 2 EHRR 305, a denial of legal aid in an individual case may prevent effective access to justice, as required by Article 6, if the applicant is unable to present her case properly and satisfactorily without a lawyer. In Airey, the applicant, who was a victim of domestic violence, was refused legal aid to obtain a decree of judicial separation. The ECtHR found that the High Court procedure was costly and complex, parties were invariably represented by lawyers, and "marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court" (at 315). In those circumstances, Mrs Airey's right to appear in person did not provide her with an effective right of access. The Court was careful to limit its conclusion to the particular facts of her case.
- In my view, it is possible that the principle established in Airey, namely, that denial of legal aid may prevent an effective right of access to the court, could be applicable to some victims of domestic violence who fall within paragraph 12 of Part 1 of Schedule 1, but cannot fulfil the requirements of regulation 33. The Defendant's Skeleton Argument and Detailed Grounds of Defence both assert that section 10 provides a "safety valve" in such cases, if the Director concludes that a denial of funding would be a breach of an individual's Convention or EU rights (see also R (Gudanaviciene & Ors v. Director of Legal Aid Casework & Ors  EWCA Civ 1622, at ). However, the Claimant's evidence indicated that some applications for exceptional funding have been rejected in some instances (though by no means all) on the grounds that section 10(1) is limited to "civil legal services other than services described in Part 1 of Schedule 1" and so a victim of domestic violence who falls within paragraph 12 would not be eligible. The email exchange between Mr Parsons and Cris McCurley seems to support this restrictive interpretation of section 10. Section 3 of the Human Rights Act 1998 requires primary and secondary legislation to be read and given effect in a way which is compatible with Convention rights, so far as it is possible to do so. As it is unlawful for a public authority to act in a way which is incompatible with a Convention right, under section 6, I consider that this issue requires urgent review by the Defendant.
- I am fortified in my view that regulation 33 neither thwarts nor frustrates the statutory intention of the primary legislation by consideration of the legislative history. The Defendant's proposal to make regulations in these terms was considered and approved by Parliament during the passage of the LASPO bill (as set out in the Defendant's skeleton argument and the Claimant's Grounds).
- The Bill was introduced to the House of Commons in June 2011. The provisions concerning domestic violence were the subject of vigorous debate in both the House of Commons and House of Lords between June 2011 and April 2012.
- On 30 January 2012 the Government published its response to the Joint Committee on Human Rights' 22nd Report of Session 2010-12 in which it explained:
"The evidence criteria for private family law start from the position that victims of domestic violence should have the benefit of legal aid in such cases where they will be disadvantaged by facing their abuser as the other party. However, concerns were raised during consultation that this proposal could see a rise in unfounded allegations, and the Government does wish also to guard against that. Therefore the criteria need to involve clear, objective evidence of domestic violence so that funding is targeted on those cases where the victim needs assistance because of being intimidated or otherwise disadvantaged by the fact of facing the abuser in the proceedings."
- The House of Lords passed two amendments to the Bill in order to:
a) place on the face of the Bill a list of the forms of evidence that would be accepted as demonstrating domestic violence for the purposes of qualifying for legal aid, rather than leaving the matter to be covered in regulations (Amendment 194); and
b) insert a provision on the face of the Bill to the effect that no time limit would apply to the forms of evidence that would be accepted (Amendment 196).
- The Defendant considered the concerns raised in Parliament and responded by:
a) widening the Bill's definition of domestic violence;
b) increasing the categories of evidence of domestic violence that it undertook would be accepted for the purposes of qualifying for legal aid (to be set out in regulations); and
c) doubling the time-limit that it had proposed would apply to certain categories of evidence from 12 months to two years.
- Following debate, the House of Commons rejected the House of Lords' amendments. When the Bill returned to the House of Lords, a motion moved by Baroness Scotland was passed which again sought to introduce an amendment to prescribe the acceptable forms of evidence on the face of the Bill and insert a provision that "no evidence shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed". This amendment was defeated in the House of Commons on 24 April 2012 and was not insisted upon by the House of Lords.
- The CLA(P) Regulations 2012 were laid before Parliament on 17 December 2012. By section 41(5) of LASPO 2012, they were subject to an annulment in pursuance of a resolution of either House of Parliament. No negative resolution was passed in either House. Instead a Motion of Regret was moved by Baroness Scotland in the following terms:
"The House regrets that [the Procedure Regulations] fail to deliver on Her Majesty's Government's expressed promise to provide adequate legal aid provision for victims of domestic violence; that significant numbers of victims will not be able to satisfy the evidential criteria, contrary to Her Majesty's Government's express intent, resulting in a diminution of access to justice; and that, as a result, domestic violence victims will be exposed to an increased risk of injury and death."
- Subsequently, the Defendant carried out a review of the operation of regulation 33, in accordance with a commitment given to Parliament. The Civil Legal Aid (Procedure) (Amendment) Regulations 2014 were laid before Parliament on 27 March 2014. Again, no negative resolution was passed in either House.
- In my judgment, where delegated legislation is challenged on the ground that it thwarts or frustrates the statutory purpose, it is permissible for the Court to be informed of the extent of Parliament's knowledge and approval of the provisions under challenge when enacting the enabling legislation. Otherwise the Court may proceed on a false assumption or be misled. Although the Court may conclude that delegated legislation is ultra vires, despite approval by Parliament, it must decline to intervene where, in effect, a claimant asks it to enter the political arena and substitute its views for those of Parliament. In my view, that is what the Claimant invites the Court to do in this case. As Lord Bingham explained in R (Countryside Alliance & Ors) v. Attorney General & Ors  1 AC 719 (a human rights challenge to the hunting ban) at , "[t]he democratic process is liable to be subverted, if on a question of moral and political judgment, opponents of the Act achieve through the courts that which they could not achieve in Parliament". In the context of another human rights challenge in R (MA) v. Secretary of State for Work and Pensions  PTSR 584, Lord Dyson said:
"Where a statutory instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the courts will hold it to be unlawful: see Bank Mellat v HM Treasury (No 2)(Liberty intervening)  3 WLR 179, para 44, per Lord Sumption JSC and Black v Wilkinson  1 WLR 2490, paras 46-49. In my view considerable weight should be given to this factor, particularly because some of the alleged shortcomings in the scheme that have been canvassed before us were debated in Parliament. The effect of the 2012 Regulations (as amended) in conjunction with the DHP scheme on the position of disabled persons was well understood by Parliament."
Whilst acknowledging the distinctions between the role of the Court in a challenge under the Human Rights Act 1998 and an ultra vires challenge, nonetheless similar considerations apply in this case.
- In conclusion, I reject the Claimant's submission that the Defendant exceeded his powers under LASPO 2012 when making regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, for the reasons set out above.
Lord Justice Fulford:
- I agree.
Note 1 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013/748, art. 4(1) [Back]
Note 2 “A Call to End Violence against Women and Girls: Strategic Vision”, 25th November 2010; “A Call to End Violence against Women and Girls: Action Plan”, 8th March 2011; “Cross-Government Definition of Domestic Violence Summary of Responses”, September 2012.
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