The Queen (on the application of Rights of Women) v The Lord Chancellor and Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Kitchin,Lady Justice Macur |
| Judgment Date | 18 February 2016 |
| Neutral Citation | [2016] EWCA Civ 91 |
| Docket Number | Case No: C1/2015/0459 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 2016 |
[2016] EWCA Civ 91
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
THE RIGHT HONOURABLE LORD JUSTICE FULFORD & THE HONOURABLE MRS JUSTICE LANG
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Kitchin
and
The Right Honourable Lady Justice Macur DBE
Case No: C1/2015/0459
Ms Nathalie Lieven QC and Ms Zoe Leventhal (instructed by The Public Law Project) for the Appellant
Mr Neil Sheldon & Mr Alasdair Henderson (instructed by Government Legal Department) for the Respondent
Hearing dates: 28 th January 2015
Introduction
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.
In the wake of the accession on the part of the United Kingdom to the Convention on the Elimination of All Forms of Discrimination Against Women, the Government has adopted a cross-governmental definition of domestic violence 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."
This is the definition now contained in paragraph 12(9) of Part I of Schedule 1 of the Civil Legal Aid (Procedure) Regulations 2012 ("the 2012 Regulations") as amended by article 4(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order SI 2013/748.
It is these Regulations which are at the heart of this appeal from the Divisional Court's refusal of the claimant's application to quash regulation 33 on the grounds that the Lord Chancellor has exceeded the powers conferred on him to make relevant regulations by section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO").
Regulation 33 of the 2012 Regulations 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, 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.
The claimant ("Rights of Women") 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 for those grounds by Burnett J.
The Statutory Scheme
I gratefully adopt the summary given by Lang J in the Divisional Court.
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 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."
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, and 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:—
i) Advice and representation in relation to divorce and financial relief and enforcement;
ii) Advice and representation on applications for transfers of tenancies;
iii) 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".
Section 10 concerns the funding of "exceptional cases" which do not come within the scope of Section 9. Since domestic violence cases come within paragraph 9, there is little scope for "exceptional" domestic violence cases to be considered pursuant to this section.
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...
To continue reading
Request your trial
-
R Neil Coughlan v The Minister for the Cabinet Office
...[2003] 2 AC 687; [2003] 2 WLR 692; [2003] 2 All ER 113, HL(E)R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91; [2016] 1 WLR 2543; [2016] 3 All ER 473, CAWatkins v Secretary of State for the Home Department [2006] UKHL 17; [2006] 2 AC 395; [2006] 2 ......
-
Nemat Soltany v Secretary of State for the Home Department
...the Environment, Transport and the Regions ex parte Spath Holme Ltd [2001] 2 AC 349, at 382, and R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 [2016] 1 WLR 2543 (CA), at paragraph 243 In the present case, the statutory purposes of Rules 3(1) and 39 of the DCR are clear on the f......
-
The Renewable Heat Association and Another Application for Judicial Review and in the matter of an application for leave to apply for Judicial Review by Thomas Forgrave
...would be resolved by restrictive approach.” [85] In Regina (Rights of Women) v Lord Chancellor and the Secretary of State for Justice [2016] EWCA Civ 91 the Lord Chancellor also exceeded the scope of the power vested in him in relation to legal aid when restricting eligibility for victims o......
-
Secretary of State for Work and Pensions v Danielle Johnson
...described as breach of the Padfield principle, as recently delineated by the Court of Appeal in R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91, [2016] 1 WLR 2543. That case concerned a judicial review of secondary legislation concerning access to legal aid for victims of domesti......
-
When Women's Rights are Not Human Rights – the Non‐ Performativity of the Human Rights of Victims of Domestic Abuse within English Family Law
...were too restrictive. See The Queen (on the application of Rights ofWom e n) vThe Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91.45 See F. Syposz, ‘Research Investigating the Domestic Violence Evidential Requirements forLegal Aid in in Private Family Disputes’ Ministr......
-
The Authority and Interpretation of Regulations
...Hoare Bell Solicitors) vLord Chancellor [2015] 1 WLR 4175. See also R(RightsofWomen)vLord Chancellor and Secretary of State for Justice [2016] 1 WLR 2543.75 Ben Hoare Bell ibid at [5], [13], [41], Appendix 2 para 17.76 ibid at [20]-[30].77 ibid at [40].78 ibid at [52]-[60].79 ibid at [43], ......