Civil legal aid is now available in such a limited category of cases that most practising lawyers will rarely (if ever) encounter it. So there is a risk that the interesting constitutional issue at the heart of the recent judgment in Rights of Women v The Lord Chancellor will fail to get the recognition it deserves.
In that case, the Court of Appeal declared unlawful a set of regulations that would have significantly limited the ability of victims of domestic violence to obtain legal aid. This briefly made the news headlines, before being displaced by the even bigger legal story of the same day, the Supreme Court’s conclusion (in Jogee) that the courts had been misapplying the law on criminal joint enterprise for the past thirty years.
However, aside from the importance of its impact in domestic abuse cases, Rights of Women is worth a second look because of its wider interest to anyone involved in making, relying on, or seeking to challenge delegated legislation.
Rights of Women is one of the ‘cuts cases’ flowing from the austerity policies of the post-credit crunch era. I have written before (here) about some of those cases. Rights of Women exemplifies a category of cuts case in which a challenge is brought not against the discretionary spending decision of a public body, but to the secondary legislation under which those decisions (particularly on entitlement to benefits) fall to be made.
In the case, the underlying legislation was the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’). Prior to LASPO, civil legal aid was not exactly doled out with abandon, but the Act introduced severe new limitations. Structurally, it reversed the order of the previous legislation, under which legal aid was generally made available except in those cases that were excluded by statute. After LASPO, it is generally not available, except where the Act expressly authorises it.
Unsurprisingly, since it directly engages the legal profession, LASPO has generated a sub-category of cuts cases all of its own – see for instance the recent judgments in Ben Hoare Bell and Public Law Project.
One area in which civil legal aid is expressly preserved by the Act relates to cases that involve domestic violence. Eligibility for funding is subject to both means and merits tests. For the purposes of enabling the merits of a case to be assessed, the Lord Chancellor is entitled under section 12 of LASPO to make a set of regulations dealing with procedural matters. This he did in the form of the Civil Legal Aid (Procedure) Regulations 2012.
In 2014, regulation 33 of these Regulations was amended by the Lord Chancellor to require, that in most cases an applicant for legal aid would need to provide documentary evidence of domestic violence occurring within the previous 24 months. This was no mere formal requirement. Its practical effect was to exclude from eligibility for legal aid a wide range of applicants who had been subject to domestic abuse. The Court of Appeal in Rights of Women listed, merely by way of example , what it described as a ‘formidable catalogue’  of cases in which this procedural requirement rendered legal aid unavailable.
Rights of Women, a campaigning charity with a specialist focus on this area of law, brought a challenge by way of judicial review to the amended Regulations.
The claim did not rely on rights or equality arguments, but on two traditional public law grounds – ultra vires and Padfield.
The ultra vires argument failed at first instance in the Divisional Court, and got nowhere in front of the Court of Appeal.
The case was that section 12 of LASPO did not empower the Lord Chancellor to make regulations having a substantive effect on eligibility for legal aid. However, the Court of Appeal considered that the relevant words of the section – a power for the Regulations to include ‘provision about conditions which must be satisfied by an applicant’ for legal aid – was quite broad enough to encompass the amended regulation 33.
The Padfield challenge was a different matter. Padfield v Minister of Agriculture, Fisheries and Food  AC 997 established that even where a statutory power appears unlimited, it is subject to the implied limitation that it must always be exercised to promote the ‘policy and objects of the Act’.
In the judgment of the Divisional Court (available here) the primary purpose of LASPO was ‘to make substantial reductions in civil legal aid expenditure’ (at ). Regulations which took a number of cases outside the scope of legal aid could therefore not be said to frustrate the policy and objects of the Act, but on the contrary to be entirely in line with them.
The Court of Appeal preferred the view that the central purpose of LASPO was to provide civil legal aid in cases where it was most needed. It considered that this did not contradict the aim of saving money, but that the two aims were compatible – it was precisely because of the desire to save money that legal aid was being focused on the cases where it was most required .
Taking these two strands together, the Court of Appeal interpreted the purpose of the Act as being: ‘partly to withdraw civil legal services from certain categories of case in order to save money but also to make such services available…to the great majority of persons in the most deserving categories’ .
If this correctly described the policy and objects of LASPO – rather than the statement of purpose preferred by the Divisional Court – then regulation 33 must be unlawful, since its effect was to take so many deserving cases outside the scope of legal aid . The Court of Appeal granted a declaration to this effect.
The Constitutional Point
So far, so good. If this was all there was to it, Rights of Women would serve as an interesting reminder of the power of the rule in Padfield, while at the same time emphasising that, for the purposes of applying that rule, the ‘policy and objects’ of any Act are highly sensitive to differing judicial interpretations.
However, there was something else of relevance in the history of the legislation. What the Lord Chancellor eventually did in the Regulations had been anticipated in Parliament. Twice the House of Lords passed amendments which would have prevented him from placing a 24 month limit on the evidence of domestic violence that could accompany an application legal aid. Twice the House of Commons voted to reject those amendments. Eventually the Lords finally gave way to the democratically-elected chamber and did not press the point for a third time. 
How should this information influence the court’s understanding of the policy and objects of LASPO? Contrasting the case with earlier challenges to legislation on a human rights basis (notably R (Countryside Alliance) v Attorney General), Longmore LJ in the Court of Appeal said that it should have no influence at all –
‘The doctrines of ultra vires and frustration of the purposes of the statute in its Padfield form are not susceptible to a similar blanket respect for the legislature. I have already said that for the purposes of the Padfield doctrine it is for the court to ascertain the parliamentary purpose from the words of the statute. The fact that the House of Commons has rejected proposed amendments to the statute which would have better promoted the statutory purpose cannot absolve the court from considering whether regulations, in their final form, when laid before the House and approved by way of negative resolution, do in fact frustrate or thwart that purpose.’ 
This is a surprising approach. Surely the better view of these facts cannot be that Parliament was acting at odds with its own purpose. Indeed it is not even clear that this is a rationally coherent approach. What after all is ‘parliamentary purpose’ if not a set of legislative intentions reflected in a series of votes to adopt, or not adopt, certain features of a statute? The votes cannot logically fall to be criticised by reference to some a priori purpose when they themselves serve to define what the relevant purpose is.
In other words, if the legislative history does not correspond to the court’s understanding of what Parliament intended, then it is that understanding, not any action of Parliament, which is at odds with the statutory purpose and must give way. The appropriate course of action ought to be that the court’s initial estimation of the policy and objects of the Act is revisited and adjusted in the light of this information.
The Divisional Court found the evidence of what occurred in Parliament to be a persuasive factor in its application of the Padfield doctrine, so why did the Court of Appeal take a different view?
The reasons given are far from extensive. But it is implied that the court took a self-limiting approach to the material on which it could rely in order to determine the policy and objects of the Act – its function being ‘to ascertain the parliamentary purpose from the words of the statute‘ (emphasis added).
Is this correct? Certainly it is true, as the court pointed out , that the House of Lords in Padfield regarded its role in these terms – ‘the policy and objects of the Act must be determined by construing the Act as a whole’ (at page 1030, emphasis added). But Padfield was decided in 1968. If, following Pepper v Hart, it is now permissible to use evidence of debates in Parliament to resolve ambiguities in statutory language, how can it be impermissible to have regard to votes cast by Parliament in order to understand ‘parliamentary purpose’?
The Divisional Court had no doubt that it was appropriate to take into account that evidence, ‘Otherwise the Court may proceed on a false assumption and be misled’ (at ).
Indeed one of contradictory features of the Court of Appeal judgment in Rights of Women is that, while implying that it was concerned only with the words of the statute, it expressly relied on (non-parliamentary) extraneous material, including documents published by the Ministry of Justice, in order to ascertain its purpose ( – ).
In doing so, it fell into the trap identified some years earlier by Lord Nicholls of Birkenhead in R v Secretary of State for the Environment, Transport and the Regions ex p Spath Holme Ltd  AC 349 –
‘The purpose for which a statutory power is conferred is just as much a question of interpretation of the statutory provision as is the meaning of a particular word or phrase. It cannot be right for the courts to look at parliamentary proceedings, if they assist, on the interpretation of a particular word or phrase, but to decline to look at parliamentary proceedings, however much assistance they may give, when deciding, as a matter of interpretation, what was the purpose for which a power was conferred. The point is underlined by noting that, if drawn, this distinction has the consequence that, in the latter type of case, the courts will look at other forms of extraneous material if they assist, such as statements in Government white papers, but not at what was said by Government ministers in Parliament. This would not be a rational distinction.’ (at page 398, emphasis in the original)
To put this another way, the Court of Appeal was correct to say that ascertaining the purpose of the Act was a matter for the court and not the Minister . But it was surely wrong to conclude that, in reaching its judgment on this issue it could disregard the clear evidence of the intentions of Parliament.
Longmore LJ said that these issues are not matters of ‘blanket respect for the legislature’. But if ascertaining parliamentary purpose is not a matter of respect for Parliament, what is it?
It is these aspects of Rights of Women which push the case from being an interesting, but routine, application of Padfield to one of some constitutional relevance.
The claim was treated in the Divisional Court (at , quoting Lord Bingham in Countryside Alliance) as being an attempt by opponents of a statute to ‘achieve through the courts that which they could not achieve in Parliament’ – in other words to invite a form of judicial legislation. For all practical purposes, that is exactly what they achieved in the Court of Appeal.
The Court of Appeal began its judgment with the words –
‘Legal aid is one of the hallmarks of a civilised society. Domestic violence is a blot on any civilised society but is regrettably prevalent.’ 
Absolutely right. Many will welcome the substantive outcome of the case, which is to make legal aid accessible to a category of victims of domestic violence who have a pressing need for advice and representation which would otherwise go unmet.
However, whether the majority of the Supreme Court would find themselves able to agree with the means by which that outcome was arrived at…that is a different matter entirely.