QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE LANG DBE
| THE QUEEN
on the application of
RIGHTS OF WOMEN
- and -
|THE LORD CHANCELLOR AND
SECRETARY OF STATE FOR JUSTICE
Neil Sheldon and Alasdair Henderson (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 12th December 2014
Crown Copyright ©
Mrs Justice Lang:
The Statutory Scheme
Legal Aid, Sentencing and Punishment of Offenders Act 2012
"(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),
"(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the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
"(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."
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.
"(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."
"The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings."
(2) Regulations may make provision about the making and withdrawal of determinations under section 9 and 10.
(3) Regulations under subsection (2) may, in particular, include –
(a) provision about the form and content of determinations and applications for determinations,
(b) provision permitting or requiring applications and determinations to be made and withdrawn in writing, by telephone or by other prescribed means,
(c) provision setting time limits for applications and determinations,
(d) provision for a determination to be disregarded for the purposes of this Part if made in response to an application that is made otherwise than in accordance with the regulations,
(e) provision about conditions which must be satisfied by an applicant before a determination is made,
(f) provision about the circumstances in which a determination may or must be withdrawn,
(g) provision requiring information and documents to be provided,
(h) provision requiring individuals who are the subject of a determination to be informed of the reasons for making or withdrawing the determination, and
(i) provision for giving information to individuals who do not qualify for civil legal services under this Part about alternative ways of obtaining or funding legal services.
"(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.…."
Civil Legal Aid (Procedure) Regulations 2012
"33. Supporting documents: domestic violence
(1) An application for civil legal services described in paragraph 12 of Part 1 of Schedule 1 to the Act must include evidence of the domestic violence or the risk of domestic violence.
(2) For the purpose of para (1), the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms—
(a) a relevant unspent conviction for a domestic violence offence;
(b) a relevant police caution for a domestic violence offence given within the twenty four month period immediately preceding the date of the application for civil legal services;
(c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;
(d) a relevant protective injunction which is in force or which was granted within the twenty four month period immediately preceding the date of the application for civil legal services;
(e) an undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) —
(i) by the individual ("B") with whom the applicant for civil legal services ("A") was in a family relationship giving rise to the need for the civil legal services which are the subject of the application; and
(ii) within the twenty four month period immediately preceding the date of the application for civil legal services,
provided that a cross-undertaking was not given by A;
(ea) evidence that B is on relevant police bail for a domestic violence offence
(f) a letter from
the person appointed to chairany person who is a member of a multi-agency risk assessment conference [MARAC] confirming that—
(i) A was referred to the conference as a
high riskvictim of domestic violence; and
(ii) the conference has, within the twenty four month period immediately preceding the date of the application for civil legal services, put in place a plan to protect A from a risk of harm by B;
(g) a copy of a finding of fact, made in proceedings in the United Kingdom within the twenty four month period immediately preceding the date of the application for civil legal services, that there has been domestic violence by B giving rise to a risk of harm to A;
(h) a letter or report from a health professional who has access to the medical records of A confirming that
thethat professional or another health professional—
(i) has examined A in person within the twenty four month period immediately preceding the date of the application for civil legal services; and
(ii) was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence;
(iii) has no reason to believe that A's injures or condition were not caused by domestic violence;
(i) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the twenty four month period immediately preceding the date of the application, A was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment);
(j) a letter or report from a domestic violence support organisation in the United Kingdom confirming—
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, admitted for a period of twenty four hours or more to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services (and, where relevant, that period commences with the date on which A left the refuge), admitted to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;
(ii) the dates on which A was admitted to and, where relevant, left the refuge; and
(iii) that A was admitted to the refuge because of allegations by A of domestic violence.
(k) a letter or report from a domestic violence support organisation in the United Kingdom confirming—
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, refused admission to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence, on account of there being insufficient accommodation available in the refuge; and
(ii) the date on which A was refused admission to the refuge;
(l) a letter or report from—
(i) the person to whom the referral described below was made;
(ii) the health professional who made the referral described below; or
(iii) a health professional who has access to the medical records of A,
confirming that there was, within the twenty four month period immediately preceding the date of the application for civil legal services, a referral by a health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence;
(m) a relevant domestic violence protection notice issued under section 24 of the Crime and Security Act 2010, or a relevant domestic violence protection order made under section 28 of that Act, against B within the twenty four month period immediately preceding the date of the application for civil legal services;
(n) evidence of a relevant court order binding over B in connection with a domestic violence offence, which is in force or which was granted within the twenty four month period immediately preceding the date of application for civil legal services.".
i) Applications in damages claims. Regulation 32 requires that the application must include an estimate of likely damages, for which requirements are set out; and
ii) Applications for the protection of children under paragraph 13 of Schedule 1. Regulation 34, entitled "Supporting documents: protection of children" requires evidence of the risk of abuse must be provided in one or more the prescribed forms, which are similar to those in regulation 33.
The Claimant's Grounds
a) An absolute time limit of 24 months on the evidence of domestic violence which can be relied upon, without any discretion to waive this.
b) Although it is theoretically possible for victims of emotional or psychological abuse to obtain the required evidence, in reality it is exceptionally unlikely. Financial abuse and controlling/coercive behaviour are not provided for at all.
c) It will be virtually impossible in practice for those who are at risk of domestic violence, but have not yet suffered it, to obtain the required evidence.
d) Only evidence which has come to the attention of the courts or statutory agencies can be relied upon.
e) There is no residual discretion on the part of the Legal Aid Agency to accept evidence which does not meet the prescribed conditions.
Evidence of the Scheme in Operation
The Grounds of Challenge
"Section 28. Ultra vires delegated legislation
Any provision of an instrument constituting delegated legislation is ineffective if the provision goes beyond the totality of the legislative power which (expressly or by implication) is conferred on the delegate by the enabling Act or Acts. The provision is then said to be ultra vires (beyond the powers). This applies even where the instrument has been sanctioned by confirming authority…."
"To my mind a court is bound before reaching a decision on the question whether a regulation is intra vires to examine the nature, objects, and scheme of the piece of legislation as a whole, and in the light of that examination to consider exactly what is the area over which powers are given by the section under which the competent authority is purporting to act. In taking that view I respectfully apply the line of approach adopted by Lord Greene in the above cited cases, where he referred to the need for the acts of the competent authority to fall within the four corners of the powers given by the legislature."
"(1) Orders, regulations and directions under this Part—
(a) may make different provision for different cases, circumstances or areas,
(b) may make provision generally or only for specified cases, circumstances or areas, and
(c) may make provision having effect for a period specified or described in the order, regulations or direction.
(3) Orders and regulations under this Part—
(a) may provide for a person to exercise a discretion in dealing with any matter,
(b) may make provision by reference to a document produced by any person, and
(c) may make consequential, supplementary, incidental, transitional or saving provision."
"(e) provision about conditions which must be satisfied by an applicant before a determination is made," and
"(f) provision about the circumstances in which a determination may or must be withdrawn."
"(g) provision requiring information and documents to be provided."
I consider the Defendant is correct to submit that section 12(3)(g) envisages that evidential requirements may be imposed in the form of regulations. The essence of the Claimant's complaint is that the "information and documents to be provided" have been too narrowly defined in regulation 33 and are overly prescriptive. This is a challenge to the manner in which the power has been exercised, not the scope of the power.
"Mr Bonney for Spath Holme rightly reminded us that no statute confers an unfettered discretion on any minister. Such a discretion must be exercised so as to promote and not to defeat or frustrate the object of the legislation in question. Counsel relied on Padfield v. Minister of Agriculture, Fisheries and Food  AC 997, 1030 where Lord Reid said:
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court." "
"Their lordships adopt with approval the statement in the judgment of the High Court of Australia in Shanahan v Scott relating to the construction of a provision similar to section 22(1) of the Scaffolding and Lifts Act 1912-1960, to the following effect:
"The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." "
"The power to add, vary or omit services under s.9 as supplemented by s.41 is to serve and promote the object of the statute. The power cannot be construed in a way which widens the purposes of the Act or departs from or varies its primary objective (see, e.g., Utah Construction and Engineering Pty v. Pataky  AC 629 at 640 and Bennion on Statutory Interpretation 5th edition section 59, pages 262-263). The discretion is conferred to promote the policy and objects of the Act and not to introduce a different objective."
"3. From the outset the legislative and policy intent was to ensure that those victims of domestic violence who genuinely required assistance in court proceedings were able to obtain legal aid. This is evident from the consultation paper and the Government's response to it. The MOJ also made this clear in subsequent actions, including departmental impact assessments and when conducting further reviews. These informed the secondary legislation governing the forms of acceptable evidence of domestic violence for the purpose of determining eligibility for legal aid.
4. On 10th November we published a consultation paper entitled "Proposals for the Reform of Legal Aid in England and Wales. In relation to civil legal aid, the paper explained:
"4.2.1 The scheme in its current form is no longer sustainable financially if the Government is to meet its commitment to reduce the public financial deficit. We have therefore had to make tough decisions about where best to target resources."
5. The paper proposed to specify in legislation the areas where legal aid would continue to be available to litigants. It set out the areas of civil and family law proposed for retention in the legal aid scheme and the areas proposed for exclusion from the legal aid scheme.
6. The paper proposed to retain legal aid for domestic violence and forced marriage cases, such as those involving non-molestation orders and occupation orders. However "given the need to direct resources at the issues of highest importance in a fair and balanced way", it was considered that legal aid would not be routinely justified for ancillary relief and private law family and children proceedings (4.67). This was subject to an exception, in recognition of the fact that "where there is an ongoing risk of physical harm from domestic violence, different considerations apply". In relation to such cases, the Ministry of Justice consider that "the provision of legal aid is justified where the client may be unable to assert their rights and may face intimidation because of risk of harm" (4.67).
7. The paper emphasised:
"While we are clear that protection of those at risk of domestic violence is a priority, it is necessary to ensure that there is clear objective evidence of the need for protection in the main proceedings."...
8. In June 2011 the Government published its response to the consultation. The response explained that the criteria for applications in family law cases would be expanded to include additional criteria:
"23. The Government accepts that, to ensure that victims of domestic violence are protected, the criteria for the domestic violence exception proposed in the consultation needs to be widened, whilst maintaining the requirement for objective evidence of domestic violence. We have therefore decided to accept some additional circumstances as evidence of domestic violence, so that the criteria should target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence."
9. The Civil Legal Aid (Procedure) Regulations 2012 were laid before Parliament on 17 December 2012. Regulation 33 set out the evidence that would be required in order to qualify for legal aid as the victim of domestic abuse.
10. An impact assessment dated 12 December 2012 explained the policy objectives relating to the evidence requirements set out in Regulation 33 in the following terms:
"The Government has made exceptions to the blanket rule that legal aid will be out of scope for private family matters as there is recognition that for these vulnerable individuals facing the perpetrator in court can be traumatic and so need extra help asserting these rights. So as to target this legal aid at the right people the Government requires victims to produce evidence of the need for objective evidence of them being at risk of domestic violence. The evidence list has been drafted taking account of the need for objective evidence of the need to target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence…"
11. The Regulations were subject to the negative resolution procedure. They were debated in the House of Lords on 27 March 2013. A Motion of Regret was moved by Baroness Scotland, but no motion was made to reject the Regulations.
12. The 2012 Procedure Regulations came into force on 1 April 2013. Following this, in accordance with the Secretary of State's commitment to Parliament, the Ministry of Justice carried out a review of the impact of regulation 33.
14. As a result of that review, the Secretary of State decided to increase the forms of acceptable evidence specified under Regulation 33. The additional forms of evidence were included in the Civil Legal Aid (Procedure) Amendment Regulations 2014 which were laid before Parliament on 27 March 2014…"
"The fact that there are grounds for criticising, or disagreeing with these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified."
"Mr. Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the state which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers."
"59. The Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side.
60. Article 6(1) leaves to the state a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure.
61. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively.
62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings. Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary."
"46. The claimants contend that in denying prisoners advice and assistance under the criminal legal aid system the Regulations give rise to an unacceptable risk of interference with their rights of access to justice, guaranteed by the common law and article 6 ECHR…
47. This ground is not arguable. There is no corollary to the common law right of access to a court of a right to legal aid: R v Lord Chancellor ex parte Witham  QB 575, 581. The Strasbourg article 6 ECHR jurisprudence is clear that the provision of legal aid of this character is not mandatory, except in exceptional cases: Airey v Ireland (1979-80) 2 EHRR 305; Hooper v United Kingdom  41 EHRR 1…"
"The evidence criteria for private family law start from the position that victims of domestic violence should have the benefit of legal aid in such cases where they will be disadvantaged by facing their abuser as the other party. However, concerns were raised during consultation that this proposal could see a rise in unfounded allegations, and the Government does wish also to guard against that. Therefore the criteria need to involve clear, objective evidence of domestic violence so that funding is targeted on those cases where the victim needs assistance because of being intimidated or otherwise disadvantaged by the fact of facing the abuser in the proceedings."
a) place on the face of the Bill a list of the forms of evidence that would be accepted as demonstrating domestic violence for the purposes of qualifying for legal aid, rather than leaving the matter to be covered in regulations (Amendment 194); and
b) insert a provision on the face of the Bill to the effect that no time limit would apply to the forms of evidence that would be accepted (Amendment 196).
a) widening the Bill's definition of domestic violence;
b) increasing the categories of evidence of domestic violence that it undertook would be accepted for the purposes of qualifying for legal aid (to be set out in regulations); and
c) doubling the time-limit that it had proposed would apply to certain categories of evidence from 12 months to two years.
"The House regrets that [the Procedure Regulations] fail to deliver on Her Majesty's Government's expressed promise to provide adequate legal aid provision for victims of domestic violence; that significant numbers of victims will not be able to satisfy the evidential criteria, contrary to Her Majesty's Government's express intent, resulting in a diminution of access to justice; and that, as a result, domestic violence victims will be exposed to an increased risk of injury and death."
"Where a statutory instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the courts will hold it to be unlawful: see Bank Mellat v HM Treasury (No 2)(Liberty intervening)  3 WLR 179, para 44, per Lord Sumption JSC and Black v Wilkinson  1 WLR 2490, paras 46-49. In my view considerable weight should be given to this factor, particularly because some of the alleged shortcomings in the scheme that have been canvassed before us were debated in Parliament. The effect of the 2012 Regulations (as amended) in conjunction with the DHP scheme on the position of disabled persons was well understood by Parliament."
Whilst acknowledging the distinctions between the role of the Court in a challenge under the Human Rights Act 1998 and an ultra vires challenge, nonetheless similar considerations apply in this case.
Lord Justice Fulford: