Legal aid appeal allowedThe question for the Court of Appeal in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice  EWCA Civ 9 (on appeal from R (Rights of Women) v Lord Chancellor and Secretary of State for Justice  EWHC 35 (Admin)) was summarised by Longmore LJ:
' … 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  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:
' 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):
' … 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”.'
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 AppealLongmore 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:
' 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 -): 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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