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Family Law

The leading authority on all aspects of family law

22 JAN 2015

Rights of Women, R (On the Application of) v The Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin)

Rights of Women, R (On the Application of) v The Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin)
(Queen’s Bench Division, Fulford LJ, Lang J, 22 January 2015)

The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 823

Costs – Judicial review – Civil Legal Aid (Procedure) Regulations 2012, reg 33 – Whether the Lord Chancellor’s action in imposing strict evidential requirements for domestic violence victims had been ultra vires

Please see attached file below for the full judgment.

The application of the charity, Rights of Women, for judicial review of Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 was dismissed.

Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 specified types of supporting evidence of domestic violence which had to be provided in support of an application for legal aid. The Rights of Women charity sought judicial review proceedings of the regulation on the basis that the Lord Chancellor had exceeded the statutory powers conferred on him by s 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The charity submitted that the regulation was ultra vires because it imposed inflexible evidential requirements which went beyond procedural matters and imposed requirements which were not found in the eligibility criteria within the Act, which wrongly excluded applicants from the legal aid scheme. Furthermore it imposed requirements which frustrated the statutory purpose of providing legal aid for women who had suffered domestic abuse and impaired their rights of access to legal advice and the court system.

The application was dismissed. It was apparent in the Act that Parliament intended the framework for the provision of legal aid to be set out in the Act and for detailed provisions to be set out in the regulations. It was not unlawful, in principle, for the regulations to include matters not set out in the Act provided those matters did not exceed the totality of legislative power conferred on the delegate.

The Lord Chancellor had express power to include the evidential conditions contained in the regulation. They were procedural in nature and as such would frequently affect an applicant’s ability to proceed with a substantive claim or to obtain legal aid.

The purpose of the Act was to make reductions in legal aid expenditure and to remove completely civil legal aid in private family proceedings save for exceptional cases. Victims of domestic violence had been identified as an exceptional category subject to the fulfilment of certain conditions. It was consistent with the statutory purpose for the Lord Chancellor to seek to ensure that the exception was strictly confined to its intended scope and could not be exploited as a route to obtaining legal aid. In this case the Lord Chancellor had not exceeded the exercise of his discretion to thwart to purpose of the Act. It had been a legitimate means of giving effect to the Act.


Neutral Citation Number: [2015] EWHC 35 (Admin)
Case No: CO/2365/2014

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, DIVISIONAL COURT

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: Thursday 22nd January 2015

Before:

LORD JUSTICE FULFORD
and
MRS JUSTICE LANG DBE

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Between:
THE QUEEN
on the application of
RIGHTS OF WOMEN
Claimant

- and -

THE LORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICE
Defendant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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

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Judgment

Rights of Women, R (On the Application of) v The Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin)
Domestic Violence, Crime and Victims Act 2004

Domestic Violence, Crime and Victims Act 2004

A Practitioner's Guide (Jordan Publishing New Law Series)

Explains the changes to the way courts deal with domestic violence

Emergency Remedies in the Family Courts

Emergency Remedies in the Family Courts

"A very good tool for the busy family lawyer" Solicitors Journal

Available in Family Law Online
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