A worsening of the applicant’s position?
Modest amendments to the legal aid scheme come into force on 17 July 2015 under Civil and Criminal Legal Aid (Amendment) Regulations 2015 (SI 2015/1416: ‘CCLA(A)R 2015’; http://www.legislation.gov.uk/uksi/2015/1416/pdfs/uksi_20151416_en.pdf. Already these amendments have been given a muted welcome by, for example, the Law Society and Resolution. The welcome should perhaps be more limited still: one amendment seems to worsen the position of the applicant and the second to provide but a grudging change.
If I were a family court judge I would be very cross that civil servants in Legal Aid Agency (‘LAA’) could, in effect, tell me what was domestic abuse and when I could protect a party to proceedings under Family Law Act 1996 Part 4 or Protection from Harassment Act 1997 from such abuse. The effect of Civil Legal Aid (Procedure) Regulations 2012 (‘CLA(P)R’) reg 33 is that it is unlikely – because of the proscribed way in which legal aid is available to those whose means justify it – that the starting point for exercise of judicial discretion is restricted by the 2013 legal aid scheme (under Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) Sch 1 para 12). (It is worth noting that reg 33 also ignores – in a more or less unprincipled way – basic common law rules about issue estoppel; but that is perhaps for another day.)
‘Extensions’ to civil legal services scheme
It is said that amendments have now been made to CLA(P)R 2012. The explanatory note to the amendment regulations states:
Regulation 2 amends the Civil Legal Aid (Procedure) Regulations 2012 (S.I. 2012/3098) [to] extend and clarify the evidential requirements in relation to applications regarding… victims of domestic violence and child abuse.
On examination of the very modest amendments, it seems to me that one of the two amendments restricts – rather than ‘extends’ – the availability of domestic abuse legal aid. The headline ‘Government loosens restrictions imposed on domestic abuse victims following Law Society lobbying’ attributed to the Law Society on 8 July 2015 therefore seems incorrect. And the suggestion (see eg the Resolution press release) that the amendments provide that ‘victims can be assured of support throughout their case’ is not supported by the evidence of the new regulations. That ‘support’ – such as it was – was always there surely? All grants of legal aid are based on evidence (as is the case under the amendment regulations) ‘preceding the date of the application for civil legal services’ (see eg regs 33(2)(b), (d), (eb) etc).
Correctly Resolution warns that ‘further work needs to be done to protect sufferers of domestic abuse.’ From the very modest amendments two immediate questions arise:
- What do the amendments actually say; and what do they mean (their significance is minimal)?
- What do they mean to the ordinary reader who needs to understand whether s/he is eligible for legal representation?
The amendments and their effects
CLA(P)R 2012 reg 33(2) provides the ‘the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms’ (and has already been the subject of an unsuccessful application in the Divisional Court: R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice  EWHC 35 (Admin)).
The Ministry of Justice press release on the changes (https://www.gov.uk/government/news/civil-news-change-to-domestic-and-child-abuse-evidence-requirements ) tells the reader that the result of the amendments is that from ‘17 July 2015 some evidence need not be re-examined before a final hearing if a certificate has already been granted earlier in the legal process’. This is achieved as follows:
- relevant convictions for domestic violence or child abuse offences will remain valid evidence for 24 months or until spent – whichever period is longer
- clarify the language about what is meant when describing evidence of a stay in a domestic violence refuge
(1) Limitations on unspent convictions
So yes, CLA(P)R 2012 reg 33(2)(a) said that amongst ‘the evidence of domestic violence or risk of domestic violence’ which an applicant must provide is ‘a relevant unspent conviction for a domestic violence offence’. This requirement has been amended by addition of reg 33(2)(eb) as follows:
(eb) a relevant conviction for a domestic violence offence where B was convicted of that offence within the twenty four month period immediately preceding the date of the application for civil legal services;
It is unclear why this has been added six clauses after the provision to which it applies (if it does). More seriously, if anything the provision narrows the availability of legal aid, surely? Previously the conviction appears to have been for an unlimited period, whilst ‘unspent’; whereas now the conviction must be in the twenty-four month period prior to grant of representation.
(2) No minimum period in a refuge
The twenty-four hour minimum period in a refuge is replaced by a new CLA(P)R 2012 reg 33(2)(i) and 33(3) definition: that accommodation in a refuge is no longer subject to a minimum period. That is the advance which these amendments represent.
Clarity of legal aid law
Lord Bingham’s first ‘sub-rule’ of the rule of law (set out in his 2006 lecture (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php) and elaborated in his 2010 book Rule of Law) was:
First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.
The assumption that legal advice will usually be available may be accounted optimistic in 2015. The need for clarity is even more pressing as a result. Given that the statutory provisions for legal aid in this area by definition are designed – or should be – for vulnerable and needy individuals already confronting a difficult and abusive life, surely the law-maker has a duty, in a democracy governed by the rule of law, to provide clarity in Binghamian terms.
LASPOA 2012 is a shamefully dense piece of legislation. Subsidiary legislation (eg here CLA(P)R 2012) only intensifies that density and thus the sham. And now we have amendment regulations which may not even be understood by the civil servants and lawyers who promulgate them.
It is not easy to find where in CCLA(A)R 2015 reg 2 the changes alleged by the explanatory note occur in the amendment regulations. When you find them (reg 2(6)), you must then go back to CLA(P)R 2012 (not amended on the government web site: http://www.legislation.gov.uk/uksi/2012/3098/regulation/33/made) and then to 2014 amendment regs (http://www.legislation.gov.uk/uksi/2014/814/regulation/2/made) to get the full picture. That is not easy, even for a lawyer whose job it is to understand these things. For an abused mother or partner surely it must be an impossible task?
If our law-makers themselves do not understand their own amendments to a complex private-public law scheme, how can those who hope to benefit from it? These regulations under a densely provisioned Act are surely – in themselves – of dubious legality? They have already been found to be misrepresented by Ministry of Justice and the Lord Chancellor: see R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622 (and see https://dbfamilylaw.wordpress.com/2015/06/10/lord-chancellors-guidance-on-exceptional-case-funding/ on the Lord Chancellor’s new Guidance).
Does lack of clarity for the intended beneficiary mean that s/he cannot properly obtain a fair trial (European Convention 1950 Art 6(1); and see https://dbfamilylaw.wordpress.com/2015/06/11/convention-compliance-of-legal-aid-exceptional-case-determination/)? Is the legal aid scheme itself illegal (Human Rights Act 1998 s 6(1))? (I only mention it: on this day 226 years ago Parisians started to pull down the Bastille. Could English lawyers ever succeed in asserting the lack of clarity and thus illegality of LASPOA 2012, and thus start to pull down its legal aid scheme?)