R Rights of Women v The Lord Chancellor and Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang,Lord Justice Fulford |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 35 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2015 |
| Docket Number | Case No: CO/2365/2014 |
[2015] EWHC 35 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Fulford
Mrs Justice Lang DBE
Case No: CO/2365/2014
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: 12 th December 2014
The Claimant applies for judicial review to quash regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 ("the CLA(P) Regulations 2012"), either wholly or in part, on the ground that the Defendant exceeded the statutory powers conferred upon him by section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") when he made the Regulations on 12 th December 2012.
LASPO 2012 removed legal aid funding from parties to private family law proceedings, other than in certain specified categories, set out in Schedule 1 to the Act, as part of a programme of reduction in publicly funded legal services. Legal aid has been preserved for victims of domestic violence seeking protective court orders and/or who are party to family law proceedings against the perpetrator of the violence. The reason for preserving legal aid in these categories was a concern that victims of domestic violence may be vulnerable to intimidation, and disadvantaged in legal proceedings, if they are forced to represent themselves against the perpetrator of the violence.
Regulation 33 of the CLA(P) Regulations 2012 specifies the types of supporting evidence of domestic violence which must be provided in support of an application for legal aid under paragraph 12. The issue in this claim is whether procedural regulations have been unlawfully used to introduce more restrictive criteria for eligibility than those found in LASPO 2012, and 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 Claimant is a registered charity which gives free legal advice on family law (among other areas). It also campaigns and provides education and training on women's rights, with a particular specialism in gender-based violence. It has been fully engaged in the recent changes to civil legal aid.
Permission was granted by Burnett J. on a renewed application, after refusal by Cranston J. on the papers. Initially the claim also included grounds alleging breaches of the Human Rights Act 1998. However, permission was refused on those grounds by Burnett J.
The Statutory Scheme
Civil legal aid is now governed by Part 1 of LASPO 2012, which came into force on 1 st April 2013. Civil legal aid covers the provision of advice and assistance as well as representation. LASPO 2012 specifies the categories of case for which legal aid is available. Thus, it reverses the position under the Access to Justice Act 1999, and its predecessors, which provided for civil legal aid to be available in relation to any matter not expressly excluded.
Section 1 of Part 1 of LASPO 2012 provides that the Lord Chancellor "must secure that legal aid is made available in accordance with this Part". "Legal aid" means, so far as it material to this case:
"(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),
…"
Section 9 provides as follows:
"(1) Civil legal services are to be available to an individual under this Part if –
(a) they are civil legal services described in Part 1 of Schedule 1, and
(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
The civil legal services which are described in Part 1 of Schedule 1 include services which are provided to actual or potential victims of domestic violence.
Paragraph 11, entitled "Family homes and domestic violence", makes provision for civil legal services in relation to home rights, occupation orders, non-molestation orders, and injunctions following assault, battery or false imprisonment arising out of a family relationship.
Paragraph 12, entitled "Victims of domestic violence and family matters", makes 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."
"Domestic violence" is defined in paragraph 12(9) as "any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other" (underlining added).
This definition was widened by amendment 1 to add the words underlined, to bring it into line with the UK cross-governmental definition of domestic violence, adopted following a programme of action against violence against women by the Home Secretary 2 and in the light of the judgment of Lady Hale (with whom Lord Hope and Lord Walker agreed) in the Supreme Court in Yemshaw v Hounslow BC [2011] UKSC 3, at [36]. The cross-departmental definition defines "controlling" and "coercive" behaviour. The definition is consistent with the approach adopted under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which has been ratified by the UK and applied by the ECtHR, see Oduz v Turkey (2010) 50 E.H.R.R. 28.
Paragraph 12(7) provides that there is a "family relationship" between two people if they are associated with each other. This has the same meaning as under section 62 of the Family Law Act 1996 which includes spouses, civil partners, cohabitants, relatives, those in the same household, subject to exceptions.
Paragraph 12(8)(a) defines a "matter arising out of a family relationship" as including "matters arising under a family enactment". A "family enactment" is one of a list of statutory provisions set out under paragraph 12(9)(a)-(o). In summary, they include:
a) Advice and representation in relation to divorce and financial relief and enforcement.
b) Advice and representation on applications for transfers of tenancies.
c) Disputes over children, including child arrangement orders (formerly contact and residence); prohibited steps orders to protect children against abduction or harmful contact with a parent; child maintenance and financial orders.
Paragraph 13, entitled "Protection of children and family matters", makes provision for civil legal services for an adult in proceedings relating to a child who is at risk of abuse. "Abuse" is defined as "physical or mental abuse including sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation".
Before granting legal aid to an applicant who is eligible for civil legal services under Part 1 of Schedule 1, the Director of Legal Aid Casework (appointed under section 4) must also determine "that the individual qualifies for the services" (section 9(1)(b)).
Section 11, entitled "Qualifying for civil legal aid", provides that the Director must determine whether an individual qualifies for civil legal services in respect of financial resources and overall merits.
Financial eligibility for legal aid is governed by section 21 and the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013.
By subsection 11(2), the Lord Chancellor, in setting merits criteria, must consider the circumstances in which it is appropriate to make civil legal services available under Part 1, and consider the extent to which the criteria ought to reflect the factors in subsection (3).
The factors set out in subsection (3) are:
"(a) the likely cost of providing the services and the benefit which may be obtained by the services being provided,
(b) the availability of resources to provide the services,
(c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services under this Part,
(d) the importance for the individual of the matters in relation to which the services would be provided,
(e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,
(f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,
(g) if the services are sought by the individual in relation to a dispute, the individual's prospects of success in the dispute,
(h) the conduct of the individual in connection with services made available under this Part or an application for such services,
(i) the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and
(j) the public interest."
Subsection 11(5) provides:
"The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings."
The merits criteria...
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