R Rights of Women v The Lord Chancellor and Secretary of State for Justice

Procedure – Legal funding – Eligibility for legal aid – Categories – Domestic violence – Evidential requirements – Claimant charity providing free legal advice on areas including family law – Claimant seeking judicial review in order to quash procedural regulation specifying evidence of domestic violence required in support of legal aid application – Claimant submitting that regulation ultra vires – Whether procedural regulations unlawfully used to introduce more restrictive criteria for eligibility than those found in primary legislation – Whether regulations frustrating statutory purpose of primary legislation by prescribing acceptable types of supporting evidence too rigidly and narrowly – Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 12(2), (3), Sch 1, Pt 1, para 12 – Civil Legal Aid (Procedure) Regulations 2012, SI 2012/3098, reg 33.

The claimant was a registered charity which gave free legal advice on areas including family law. It also campaigned and provided education and training on women’s rights, with a particular specialism in gender-based violence. The claimant applied for judicial review, seeking to quash reg 33a of the Civil Legal Aid (Procedure) Regulations 2012, SI 2012/3098 (‘the 2012 Regulations’), either wholly or in part, on the ground that the defendant, the Lord Chancellor, had exceeded the statutory powers conferred upon him by s 12b of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘the 2012 Act’) when he made the Regulations on 12 December 2012. The 2012 Act removed legal aid funding from parties to private family law proceedings, other than in certain specified categories, set out in Sch 1 to the Act, as part of a programme of reduction in publicly funded legal services. Legal aid was preserved for victims of domestic violence seeking protective court orders and/or who were party to family law proceedings against the perpetrator of the violence. The reason for preserving legal aid in those categories was a concern that victims of domestic violence might be vulnerable to intimidation, and disadvantaged in legal proceedings, if they were forced to represent themselves against the perpetrator of the violence. Regulation 33 specified the types of evidence of domestic violence which had to be provided in support of an application for

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a Regulation 33 of the 2012 Regulations, so far as material, is set out at [28], below.

b Section 12 of the 2012 Act, so far as material, is set out at [24], below.

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legal aid under para 12c of Pt 1 of Sch 1 to the 2012 Act. Entitled ‘Victims of domestic violence and family matters’, para 12 made 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.’ It fell to be determined whether the 2012 Regulations had been unlawfully used to introduce more restrictive criteria for eligibility than those found in the 2012 Act, and whether they frustrated the statutory purpose, by prescribing the acceptable types of supporting evidence too rigidly and narrowly, thus excluding many women who ought to have been eligible for legal aid under the terms of the 2012 Act. The claimant submitted, inter alia, that reg 33 was ultra vires s 12(2) of the 2012 Act, which only empowered the defendant to ‘make provision for the making and withdrawing of determinations’ under s 9, which set out the criteria for eligibility, by reference to para 12 of Sch 1. The claimant also relied on s 12(3) of the 2012 Act, which provided ‘Regulations under subsection (2) may, in particular, include … (e) provision about conditions which must be satisfied by an applicant before a determination is made … (g) provision requiring information and documents to be provided …’ The claimant contended that, although it was apparent from the types of provision listed in s 12(3) that the regulations were intended to be procedural in nature, reg 33 imposed inflexible evidential requirements which went beyond the eligibility criteria in s 9 and para 12, and which had the effect of wrongly excluding applicants from the scope of legal aid. Further or alternatively, the claimant submitted that reg 33 imposed requirements or conditions which thwarted or frustrated the statutory purpose, since it impaired the right of access to legal advice and the courts in family proceedings by women (and their children) who had suffered physical and/or psychological harm as a result of domestic violence. The claimant pointed to the following features of reg 33 in support of its submissions: (a) an absolute time limit of 24 months on the evidence of domestic violence which could be relied upon, without any discretion to waive that; (b) although it was theoretically possible for victims of emotional or psychological abuse to obtain the required evidence, in reality it was exceptionally unlikely (financial abuse and controlling/coercive behaviour were not provided for at all); (c) it would be virtually impossible in practice for those who were at risk of domestic violence, but had not yet suffered it, to obtain the required evidence; (d) only evidence which had come to the attention of the courts or statutory agencies could be relied upon; and (e) there was no residual discretion on the part of the Legal Aid Agency to accept evidence which did not meet the prescribed conditions.

Held – (1) The evidential requirements in reg 33 of the 2012 Regulations, such as the time limit of 24 months, did impose conditions which had to be satisfied by the applicant before she could obtain legal aid, and those

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c Para 12 of Pt 1 of Sch 1 to the 2012 Act, so far as material, is set out at [11], below.

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conditions were not found in the 2012 Act. However, the defendant had express power to include such conditions in the 2012 Regulations under s 12(3)(e) of the Act. Those conditions were procedural in nature, because they related to the provision of evidence. The requirement to provide evidence to prove that the applicant fell within the criteria in para 12 plainly came within the scope of s 12(3)(g), which envisaged that evidential requirements might be imposed in the form of regulations. Procedural requirements, such as time limits, would frequently affect an applicant’s ability to proceed with a substantive claim or, in this instance, obtain legal aid. In any event, even if the claimant was correct to characterise the conditions as substantive, the defendant had power to make them under s 12(2). The purpose of the 2012 Regulations was 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 followed that, in principle, it was not unlawful for the 2012 Regulations to include matters which were not to be found in the Act, provided that those matters did not exceed the totality of the legislative power which (expressly or by implication) was conferred on the delegate by the enabling Act. Section 12(2) conferred a wide power, and was not expressly or impliedly limited to procedural matters (see [43], [45]–[46], [48], below).

(2) Despite the justifiable criticisms of reg 33 of the 2012 Regulations, the defendant’s chosen method of establishing eligibility was not an exercise of discretion that went so far as to thwart or frustrate the purpose of the 2012 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 the present case indicated that it might not be operating effectively in practice, that was a matter for the defendant, and ultimately Parliament, to address (see [66], below).

Per curiam. Applying the principle established 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 art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998), if the applicant is unable to present her case properly and satisfactorily without a lawyer. It is possible that the principle established in Airey could be applicable to some victims of domestic violence who fall within para 12 of Pt 1 of Sch 1 to the 2012 Act, but cannot fulfil the requirements of reg 33 of the 2012 Regulations. As it is unlawful for a public authority to act in a way which is incompatible with a Convention right, this issue requires urgent review by the defendant (see [71]–[72], below); Airey v Ireland (1979) 2 EHRR 305 considered.

Airey v Ireland (1979) 2 EHRR 305, ECt HR.

Bank Mellat v HM Treasury[2013] UKSC 39, [2013] 4 All ER 533, [2014] AC 700, [2013] 3 WLR 179.

Black v Wilkinson[2013] EWCA Civ 820, [2013] 4 All ER 1053, [2013] 1 WLR 2490.

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G v Director of Legal Aid Casework (British Red Cross Society intervening)[2014] EWCA Civ 1622, [2015] 3 All ER 827, [2015] 1 WLR 2247.

Hooper v UK (2005) 41 EHRR 1, ECt HR.

Opuz v Turkey (2009) 50 EHRR 695, (2009) 27 BHRC 159, [2009] ECHR 33401/02, ECt HR.

Padfield v Minister of Agriculture, Fisheries and Food [1968] 1 All ER 694, [1968] AC 997, [1968] 2 WLR 924, HL.

R (on the application of Howard League for Penal Reform) v Lord Chancellor [2014] EWHC 709 (Admin), [2014] All ER (D) 168 (Mar).

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