On 18 February 2016, the Court of Appeal quashed evidential rules which applied to the eligibility for legal aid of victims of domestic violence.
FACTS
The claimant, Rights of Women, is a registered charity providing free legal advice on family law. It also campaigns and provides education and training on women’s rights, with a particular specialism in gender-based violence.
This claim relates to the statutory scheme for civil legal aid, which is governed by Part 1 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Although LASPO limits the scope of legal aid for a number of purposes, it makes specific provision for victims of domestic violence (see Schedule 1(11), (12) and (13)). LASPO provides that the Director of Legal Aid Casework must determine whether an individual case qualifies on the basis of financial resources and overall merits (Section 11). However, the Lord Chancellor may make regulations which specify conditions which must be satisfied by an applicant for legal aid (Section 12).
At the heart of this appeal is Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012.
Regulation 33 specifies the types of supporting evidence of domestic violence which must be provided in support of an application for legal aid. Importantly, it provides that legal aid will not be available unless documentary verification of domestic violence is provided within the 24 month period before the application is made, save for instances of an unspent conviction, on-going criminal proceedings or existing police bail for a domestic violence offence.
Rights of Women successfully challenged the legality of the Regulations and their compatibility with the enabling provision in LASPO. Handing down his judgment, Lord Longmore said:
“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.” [1]
HELD
Ultra vires
Rights of Women claimed that Regulation 33 goes beyond the regulation making power contained in Section 12 of the LASPO and is thus ultra vires. They submitted that Section 12 did not empower the Lord Chancellor to impose any bar to the obtaining of legal aid which was not contemplated by the merits criteria in Section 11. The Court dismissed this argument and said:
“One must just construe Section 12 according to its terms. It empowers the Lord Chancellor to make (inter alia) ‘(e) provision about conditions which must be satisfied by an applicant before a determination is made’. A condition that a report must be dated within the previous 24 months seems to me to come within the statutory wording.” [36]
The ‘Padfield’ Argument: Frustrating the Intention of Parliament?
Alternatively, Rights of Women claimed that Regulation 33 frustrates the purpose of the Act in breach of the principles found in Padfield v Minister of Agriculture [1968] AC 997.
The court cited the Divisional Court in Public Law Project v Lord Chancellor [2015] 1 WLR 251 and drew on evidence of an officer of the Ministry of Justice to ascertain the purpose of LASPO.
The purpose of that Act is partly to make legal aid available to the great majority of victims of domestic violence. The court subsequently recognised evidence of many situations in which domestic violence victims, involved in legal proceedings, will be unable to obtain the verification required by Regulation 33.
Examples provided by the Court include:
- Where the perpetrator has been in prison, and once released initiates proceedings for child contact or divorce and financial settlement.
- Where a non-molestation order (or other form of injunction) has kept the parties apart for 2 years but expired before legal proceedings began
- Where the victim’s main priority was to make arrangements for their and their children’s personal safety and this process continued longer than 24 months from their last opportunity to obtain verification.
Moreover, victims of financial abuse will not be able to obtain any of the verifications required by Regulation 33 at all.
The court judged that the “formidable catalogue” of circumstances where domestic violence victims will be excluded showed that the 24 month requirement had no rational connection with the statutory purpose. In the absence of a ‘safety valve’ which enabled the victims of domestic violence to explain why they were unable to obtain such verification, Regulation 33 was found to operate in a completely arbitrary manner.
Accordingly, the Court upheld the claim that the Regulation 33 frustrated the purposes of LASPO. Regulation 33 was declared invalid insofar as it requires verifications of domestic violence within a 24 month period and omits to cater for victims of financial abuse.
On the legislative history
On two occasions during debate over LASPO, the House of Lords passed an amendment to expressly permit evidence of domestic violence without time limit. On both occasions, the amendments were defeated in the House of Commons. The Divisional Court had considered that the challenge by Rights of Women was an attempt “to achieve through the courts that which they could not achieve in Parliament” in the words of Lord Bingham in R (Countryside Alliance) v Attorney General.
In the Court of Appeal, Lord Justice Longmore suggested that the starting point for any Court must be in determining the purpose of the final text of any Act, regardless of any amendments proposed or rejected.
“The fact that the House of Commons has rejected proposed amendments to the statute which would have better promoted the statutory purpose cannot absolve the court from considering whether regulations, in their final form ,when laid before the House and approved by way of negative resolution, do in fact frustrate or thwart that purpose.” [50]
REACTION
Reacting to the judgment, Rights of Women Director, Emma Scott said:
“For nearly three years we know that the strict evidence requirements for legal aid have cut too many women off from the very family law remedies that could keep them and their children safe. Today’s important judgment means that more women affected by violence will have access to advice and representation in the family courts.”
“The Court of Appeal has accepted our arguments that the fear of a perpetrator does not disappear after 2 years and recognised that forms of violence such as financial abuse are almost impossible for women to evidence. We look forward to working with the Ministry of Justice on amendments to the regulations to ensure that women affected by all forms of domestic violence are able to get legal aid.”
Rights of Women were represented by the Public Law Project, Nathalie Lieven QC and Zoe Leventhal of Landmark Chambers.
You can read the full judgment here.
You can read more about Rights of Women and their challenge, here.
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