On Friday last week, the High Court gave judgment in Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice  EWHC 35 (Admin), a challenge to the evidence requirements (contained in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012) that must be met before legal aid in private family law proceedings can be granted based on the domestic violence exceptions.
Despite evidence of the impact the restrictions were having in practice, the Court found that they were lawful. The principal argument put forward was that, in making the regulations, the Lord Chancellor was acting outside the scope of the powers granted under LASPO. Lang J (with whom Fulford LJ agreed) said:
I accept the Claimant’s submission that the evidential requirements in regulation 33, such as the time limit of 24 months, do impose conditions which have to be satisfied by the applicant before she can obtain legal aid, and those conditions are not found in the Act. I consider that the Defendant has express power to include such conditions in the Regulations under section 12(3)(e). In my view, these conditions are procedural in nature, because they relate to the provision of evidence. Procedural requirements, such as time limits, will frequently affect an applicant’s ability to proceed with a substantive claim or in this instance, obtain legal aid. But even if the Claimant is correct to characterise them as substantive, I consider that the Defendant had power to make them under section 12(2), for the reasons given above. (para 48)
In my view, the primary purpose of LASPO 2012 was to make substantial reductions in civil legal aid expenditure, to reduce the burden on the taxpayer and the public purse, principally by removing certain types of legal proceedings from the scope of legal aid altogether. It is significant that, whereas previous legal aid legislation provided for universal legal aid, subject to exclusions, LASPO 2012 only makes civil legal aid available for specified and limited categories of cases. Those categories were selected on the basis of need, as found by the Court in the Public Law Project case, and where ECHR and treaty obligations required legal aid to be provided. (para 54)
Despite the justifiable criticisms of regulation 33, I do not consider that the Defendant’s chosen method of establishing eligibility was an exercise of discretion that went so far as to thwart or frustrate the purpose of the 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 this case indicates that it may not be operating effectively in practice, that is a matter for the Defendant, and ultimately Parliament, to address. (para 66).
In short, the Lord Chancellor had the power to require the production of prescribed evidence as a pre-requisite to qualification for legal aid under the domestic violence exemption. So the regulations were not unlawful, whatever their effect on applicants for legal aid (and those who never apply).
It is noteworthy that, despite citing what was said by Moses LJ in The Public Law Project, R (On the Application Of) v The Secretary of State for Justice  EWHC 2365 (Admin) (the residence test case), Lang J considered that the primary purpose of LASPO was to reduce costs by cutting scope. Moses LJ said that it was to target legal aid at those most in need. While there may not seem to be a significant difference between the outcomes of, on the one hand, cutting costs and so restricting legal aid to the most needy cases and on the other hand focussing legal aid on the most needy cases and so cutting costs, it seems to have made a crucial difference. It was the primary objective of focussing on need that allowed Moses LJ to say that the residence test was outside the powers conferred by LASPO, whereas it was the primary objective of cutting costs that allowed Lang J to say that the domestic violence gateway was within them.
However, the court did note that the evidence requirements “may not be operating effectively in practice”. And, in a passage which practitioners may find referring to in future useful, Lang J noted that it appears to be LAA policy to refuse exceptional funding in domestic violence cases on the grounds that s10 LASPO only applies to cases out of scope, not applications which are in scope but refused for lack of evidence. Lang J recalled that Airey v Ireland (1979) 2 EHRR 305 in the ECtHR was a domestic violence case. The ECtHR said that “a denial of legal aid in an individual case may prevent effective access to justice, as required by Article 6, if the applicant is unable to present her case properly and satisfactorily without a lawyer. In Airey, the applicant, who was a victim of domestic violence, was refused legal aid to obtain a decree of judicial separation. The ECtHR found that the High Court procedure was costly and complex, parties were invariably represented by lawyers, and “marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court” (at 315). In those circumstances, Mrs Airey’s right to appear in person did not provide her with an effective right of access. The Court was careful to limit its conclusion to the particular facts of her case.” (para 71). Lang J noted the practice of refusing s10 LASPO exceptional legal aid, and said “Section 3 of the Human Rights Act 1998 requires primary and secondary legislation to be read and given effect in a way which is compatible with Convention rights, so far as it is possible to do so. As it is unlawful for a public authority to act in a way which is incompatible with a Convention right, under section 6, I consider that this issue requires urgent review by the Defendant.” It is to be hoped that the Lord Chancellor and the LAA take the hint.
Rights of Women have confirmed their intention to appeal this case.