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Family Law

The leading authority on all aspects of family law

19 FEB 2016

Time-limit on application for domestic violence legal aid invalid

David Burrows

Solicitor Advocate

@dbfamilylaw

Time-limit on application for domestic violence legal aid invalid

Legal aid appeal allowed

The question for the Court of Appeal in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 9 (on appeal from R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin)) was summarised by Longmore LJ:

'[4] … whether [legal aid] procedural regulations have been unlawfully used to introduce more restrictive criteria for eligibility than those found in LASPO 2012, or 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 argument has focused principally on the requirement that the supporting evidence must be less than 24 months old.'

This involved two considerations: first, whether the scheme for application for legal aid was intra vires Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO); and, secondly, as operated by Legal Aid Agency did the scheme fulfil the parliamentary purpose of the Act (see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).

LASPO s 12 gives the Lord Chancellor regulation-making powers. The relevant subsidiary legislation made in exercise of these powers is Civil Legal Aid (Procedure) Regulations 2012 (as amended: ‘CLA(P)R 2012’). CLA(P)R 2012 reg 33 deals with documentation required for application for legal aid summarised by Longmore LJ:

'[29] Thus, by way of very broad summary, regulation 33 provides that legal aid will not be available unless documentary verification of domestic violence is provided within the 24 month period before the application for legal aid is made save for instances of an unspent conviction, un-concluded criminal proceedings and existing police bail for a domestic violence criminal offence.'

In the Divisional Court (see ‘Limitations on grant of domestic violence legal aid’ by David Burrows) Lang J (sitting with Fulford LJ) had rejected the application for judicial review and had accepted the rigidity of the LASPO 2012 scheme. The court concluded that it must not permit itself to ‘substitute its views for those of Parliament’ (a view rejected by Longmore LJ when he comes to consider ‘statutory purpose’: see below):

'[81] … 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 [2008] 1 AC 719 (a human rights challenge to the hunting ban) at [45], “[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”.'

Lang J therefore refused to declare invalid 24-month limitation on the age of the evidence to support an application. She was not willing to grant the declaration claimed.

Decision in the Court of Appeal

Longmore LJ started his judgment as follows by emphasising that a main reason for legal aid for victims of domestic violence is to prevent them from the disadvantage of having to represent themselves against a perpetrator:

'[1] Legal aid is one of the hallmarks of a civilised society. Domestic violence is a blot on any civilised society but is regrettably prevalent. It is therefore no surprise that in an age of austerity, when significant reductions in the availability of legal aid are being made by Parliament, legal aid is preserved for victims of domestic violence who seek protective court orders or who are parties to family law proceedings against the perpetrator of the violence. The main reason for that preservation, apart from natural sympathy with the victims of domestic violence, is that they will be intimidated and disadvantaged in legal proceedings, if they are forced to represent themselves against and perhaps be cross-examined by the perpetrator of the violence.'

The court was not prepared to find that reg 33 was ultra vires the powers given by Parliament in LASPO s 12 (paras [35]-[36]): reg 33 as to conditions to be satisfied by an application (such as providing a GP’s report dated within 24 months of the application) was, for example, within s 12(3)(e).

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‘Relevant statutory purpose’ and Padfield

However, did the present scheme comply with its statutory purpose? The essence of Padfield (above) is to assert ‘legal control over alleged absolute discretion’ and that there is no such thing as unfettered ministerial discretion (see eg discussion in Administrative Law (2014) Wade & Forsyth (11th Ed) at pp 297-299). This requires the court to seek to define the purpose of any primary legislation. Longmore LJ points out that it is important to distinguish the separate concepts of the jurisdiction to find a provision to be ultra vires and the Padfield jurisdiction of the High Court: any discretion vested in a minister must be used to ‘promote the policy and objects of the statute’ (para [42]; R (Electoral Commission) v Westminster Magistrates’ Court [2011] 1 AC 496).

For the purpose, what then is the ‘relevant statutory purpose’ of the applicable parts of LASPO? Longmore LJ’s definition of the Act’s purpose is:

‘[41] Drawing the threads together it seems to me that the purpose of the statute (or, more crucially, the relevant parts of the statute) read as a whole is partly to withdraw civil legal services from certain categories of case in order to save money but also to make such services available perhaps not to the entire membership of most deserving categories of case (such as victims of domestic violence) but at any rate to the great majority of persons in the most deserving categories. That will be catered for partly by the requirements of financial need and merit as set out in section 11 but can also be catered for by requirements which the Lord Chancellor is entitled to impose under the section 12 regulation-making power.’

However the question remains: are additional conditions (eg the 24-month time limit) ‘rationally connected’ with the purpose he has defined? He sets out ‘a formidable catalogue of areas of domestic violence not reached by’ LASPO (paras [43]-[44]) because of the 24-month limit. The question for the court then becomes: does this catalogue ‘go so far as to show that the 24 month requirement has no rational connection with the statutory purpose?’ (para [44]).

Longmore LJ considered that there was no rational connection:

(1)  First there was no rational basis for excluding from legal aid those who were outside the arbitrary 24 month limit:

‘[45] … Once it is accepted that part of the statutory purpose is to ensure that legal aid is available to (at any rate the great majority of) sufferers from domestic violence, one has to ask why it is that so many of them are excluded by virtue of the 24 month rule.… It operates in a completely arbitrary manner’

(2)  Thus reg 33 ‘frustrates the purposes of LASPOA in so far as it imposes a requirement that the verification of the domestic violence has to be dated within a period of 24 months before the application for legal aid’ (para [47]); and

In consequence the court allowed the appeal and declared that reg 33 was invalid so far as it requires verification of domestic violence only within a 24-hour period before application for legal aid.

The full judgment for Rights of Women v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91 is available here.
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