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Domestic violence: restrictions on grant of legal aid

Date:26 JAN 2015
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Solicitor Advocate

Limitations on grant of domestic violence legal aid: intra vires the Act

The Administrative Court Divisional Court (Lord Justice Fulford and Mrs Justice Lang DBE) gave judgment on 22 January 2015 in an application to quash delegated legal aid legislation in relation to domestic violence under Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). In R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin) the court defined the issues before it as whether legal aid regulations (namely Civil Legal Aid (Procedure) Regulations 2012 (CLAPR 2012) reg 33)) should be quashed because the Lord Chancellor had exceeded his statutory powers as provided for by LASPO 2012, s 12 (per Lang J at para [1]).

Rights of Women (many have been quick to point out that men are also subject to domestic violence within the definition below) challenged the narrowness and rigidity of the regulations. In particular, they pointed out, only a restricted category of victims (or alleged victims?) could be granted legal aid, namely in cases where they are forced to represent themselves against the perpetrator of the violence; and, of those, only where there was evidence of violence within the terms of reg 33 within the past 24 months.

Lang J (at paras [11] to [13]) explains that ‘domestic violence’ is defined by CLAPR 2012 Part 1 of Sch 1 para 12, under the heading ‘Victims of domestic violence and family matters’. Paragraph 12(1) states that in a family relationship there must have been, ‘or there is a risk of’ domestic violence and the applicant ‘was, or is at risk of being, the victim of that domestic violence’. ‘Domestic violence’ is defined (para 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.'
The essence of Lang J’s decision can be found at:

'[57] I consider that it was consistent with the statutory purpose of reducing the scope of legal aid, and removing it from private family law proceedings, that the Defendant would seek to ensure that the domestic violence exception was strictly confined to its intended scope and not exploited as a route to obtaining legal aid for family law proceedings which had been taken out of scope for most people.'
This gives Lang J’s answer to the real question which the case raises: namely what is the intended scope of domestic violence legal aid (as viewed as a combination of the Act and its delegated legislation)? How much was its ‘exception’ from the general exclusionary statutory scheme intended to be in line with the general aim of LASPO 2012, that is to exclude civil legal aid from most categories of family proceedings? How far did Parliament intend that there should be restrictions on grant of legal aid only to certain categories of domestic violence; and if so, is the delegated legislation in CLAP Regs 2012 consistent with what Parliament intended?

Restrictions of domestic violence legal aid

Lang J answered these questions by accepting the general rigidity of the 2012 Act scheme. The last question – perhaps the determinative – she answered, by first reminding herself that the court must not permit itself to ‘substitute its views for those of Parliament’:

'[81] … 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 [2008] 1 AC 719 (a human rights challenge to the hunting ban) at [45], “[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”.'
She concluded in this case that Parliament had had the opportunity to review CLAP Regs 2013 (by the negative resolution procedure (para [79])), and no point was taken as to them in either House, save a Motion of Regret in the House of Lords. The court was entitled to consider this delegated legislation history and must respect Parliamentary scrutiny before it could hold a statutory instrument unlawful (Bank Mellat v Her Majesty's Treasury (No 2) (Liberty intervening) [2013] UKSC 39 para [44] (but see further below)).

The court held that there was a good arguable case that some victims were excluded by reg 33 (para [38]), that some victims may be excluded from courts by denial of legal aid (subject to being brought back in by the exceptional case determination provisions of LASPO 2012, s 10(3): para [72]); and that some criticisms of reg 33 were ‘justifiable’. All that said, the court was not willing to go behind what it saw as Parliament’s scrutiny of the secondary legislation. The court rejected the quashing application.

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Thoughts on the decision

(1) Complexity of legal aid legislation

The first point which is striking about this case is that there is no judicial reflection on the extent to which the complexity of the domestic violence legal aid scheme makes it unlawful. By definition it applies to people who need to know – and to understand – whether they can obtain access to legal representation. They must know if they are excluded from help. It applies to people who, through circumstance (recent domestic violence) or educational background (most people who are not administrative law lawyers) are not likely easily to understand legal aid statutory provisions. Does the complexity which the case surely exposes, make it unlawful?

In R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 the Court of Appeal has recently reminded the Legal Aid Agency (in particular) that procedure must make courts ‘effectively accessible’:

'[66] … InAirey v Ireland [(1979) 2 EHHR 533],having decided that there was a breach of Art 6(1), the ECtHR went on to hold that the applicant was denied an "effectively accessible" legal procedure to enable her to petition for a judicial separation and that this also constituted a breach of Art 8.'
Does the relative complexity of the statutory provisions truly make courts accessible, for domestic violence victims, within Airey terms; or is a breach of Art 8 implied here (breaches of Human Rights Act 1998, but not European Convention 1950, were refused permission by the court (para [5])?

(2) Could family lawyers have added anything?

Did it make any difference that this case – essentially about justice within the family law system – was argued out in the Administrative Court by administrative lawyers (there was evidence from one family lawyer). At least one of the judges might have been drawn from the available pool of Family Division judges in the Senior Courts (I have been told by Sir Nicholas Wall P that this can be requested: was it requested here?). Could a couple of family law advocates, or Law Society specialist family lawyers, have added anything?

(3) Court’s views substituted for those of Parliament

For her assertion that the court must not ‘substitute its views for those of Parliament’ – not questioned here – Lang J cited R (Countryside Alliance & Ors) v Attorney General & Ors at para [45] and Bank Mellat v Her Majesty's Treasury (No 2) (Liberty intervening) [2013] UKSC 39 para [44].

In Countryside Alliance the issue before the House of Lords was ‘whether the prohibition of hunting wild mammals with dogs [etc] imposed by the Hunting Act 2004 is incompatible with the European Convention…’. In the passage cited, Lord Bingham had been considering the Alliance’s appeal that ‘the prohibition of hunting is not shown to reduce the overall level of suffering endured by foxes as compared with the situation which pertained before the Act’ within the terms of European Convention 1950 Arts 8 and 11. He said (of interference with these Convention rights, as asserted by the appellants):

'[45] … the interference in question is necessary in a democratic society, raising the familiar questions whether there is a pressing social need for it and whether it is proportionate to the legitimate aim pursued. There are of course many in England and Wales who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after intense debate a majority of the country's democratically-elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue…. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.'
In the fox-hunting ban case there was a free vote on the ban; whereas legal aid reform was driven by party politics (ie not a free vote in sight). And, as Lord Bingham says (italicised passage above) the fact of ‘duly enacted legislation’ does not conclude the issue (as Lang J may be thought to suggest).

In Bank Mellat (No 2) Lord Sumption sets out three examples of (at para [44]) of: ‘Where the courts have declined to review the procedural fairness of statutory orders on the ground that they have been subject to Parliamentary scrutiny’. He then points out that ‘Parliamentary scrutiny excludes the duty of fairness in general’. Just because delegated legislation has been considered by Parliament does not mean the courts are excluded form considering its fairness, and the cited passage goes on to explain this.

Did Lang J perhaps go too far in finding that, in law, the court was being asked by the applicants, impermissibly, to substitute its own views – whatever those might be – for those of Parliament?

(4) Merits of legal aid grant: not considered by the court

Lang J dealt with the merits of grant of legal aid in one line, by pointing out that the merits criteria for grant are ‘set out in’ Civil Legal Aid (Merits Criteria) Regulations 2013 (para [23]); and then she moves on. Maybe she was asked to do no more.

Grant of legal aid depends on the means of an applicant, the type of proceedings and the merits of his/her case. Means was not in issue here. Type of proceedings was very much in issue; but so too must have been the merits of grant in an individual case. To a degree this takes us back to (1) in this final part: ‘complexity’ of the scheme. The definition of merits became far more complex (despite what Lang J says) under after Access to Justice Act 1999 (with its ‘quasi-delegated’ legislation, as I once heard the Legal Services Commission representatives call it) for defining various levels of merit (now reproduced in the Merits Criteria Regulations). A simple Legal Aid Handbook (a modest paper-back), became over-night a three-lever-arch file under the 1999 Act scheme.

The merits test and how it works is surely of relevance to the case worker’s domestic violence decision-making process; to how Parliament would view the scheme and its delegated legislation; and to an assessment of its compliance with the policy under the 2012 Act scheme?

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.