Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice

Delegated regulations may prescribe evidential conditions for determining eligibility for civil legal aid where the enabling statute confers a wide power concerning applications and determinations. Such conditions need not repeat criteria found in the primary legislation, provided they remain ancillary to, and do not exceed, the statutory scheme. Prescriptive evidence requirements may be valid even though they exclude some meritorious applicants, if they pursue the statutory purpose and reflect legitimate administrative considerations. The court must distinguish an unlawful restriction on access to a court from the withdrawal of state-funded legal representation. Where Parliament has considered and approved the challenged scheme, the court should exercise considerable caution before substituting its own assessment of the appropriate policy.

The claimant, a charity providing family-law advice and campaigning on women’s rights, sought judicial review of regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012. Regulation 33 prescribed the forms of evidence required from applicants relying on the domestic-violence exception to the removal of legal aid from most private family proceedings.

The claimant argued that the regulation was ultra vires section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, because it imposed substantive eligibility conditions not contained in section 9 or paragraph 12 of Schedule 1. It also argued that the requirements frustrated the statutory purpose and impaired access to justice. The central issue was whether the evidential scheme exceeded the delegated power or unlawfully defeated the statutory scheme.

1. The claim was dismissed. Lang J, with which Fulford LJ agreed, held that section 12(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 conferred a wide power to make provision about the making and withdrawal of determinations. It was not confined to procedural matters. The non-exhaustive examples in section 12(3), particularly provision about conditions under section 12(3)(e) and information and documents under section 12(3)(g), supported that construction.

2. Regulation 33 made provision about determinations under section 9(1). Requiring evidence of domestic violence or risk of domestic violence was within section 12(3)(g). The 24-month limits and other prescribed forms of evidence were conditions concerning the provision of evidence and were within section 12(3)(e). Even if characterised as substantive, they remained within the wide power in section 12(2).

3. The regulation did not thwart or frustrate the statutory purpose. The statutory scheme deliberately removed legal aid from most private family proceedings while preserving it for defined exceptional categories, including victims of domestic violence who required protection. Objective and current evidence, clear rules, administrative consistency and control of public expenditure were legitimate considerations. The possibility that the scheme excluded some meritorious applicants, and criticisms of its operation, did not establish unlawful frustration of the Act.

4. The common-law and Convention right of access to a court did not create a general right to publicly funded legal representation. The withdrawal of legal aid was materially different from a court fee or other restriction preventing a person from obtaining legal advice or participating in proceedings. Nevertheless, under Airey v Ireland (1979-80) 2 EHRR 305, denial of legal aid might in an individual case prevent effective access to justice where the person could not present the case properly without a lawyer. The court considered that issue required urgent review in relation to section 10, given the possibility that the exceptional-funding provision might be interpreted too narrowly.

5. Parliament’s consideration of the evidential scheme was a material factor. Although parliamentary approval could not immunise delegated legislation from review, the court had to decline an invitation to substitute judicial policy preferences for Parliament’s judgment where the challenge entered the political arena.