Court of Appeal rules restrictions on access to legal aid for domestic violence survivors are unlawful

[GruntledOne]

Excellent decision, and excellent work by the Public Law Project - www.publiclawproject.org.uk/news/57/court-of-appeal-rules-restrictions-on-access-to-legal-aid-for-domestic-violence-survivors-are-unlawf

And yet more egg on Michael Gove's face.

Not sure why you think this is egg on Gove's face. He didn't introduce these changes. That was his predecessor, Chris Grayling. In Gove's time at Justice he has been busy undoing quite a lot of the things Grayling did.

The point is that (a) Gove hasn't done something about this obviously unlawful provision and (b) as Minister of Justice, it goes with the job that you get to carry the can for what your predecessors within your party have done.

It is not "obviously" unlawful. Far from it. The Divisional Court ruled in favour of the government. It is still possible that the Supreme Court will decide that the Court of Appeal has overstepped the mark.

The Public Law Project's statement on the case somewhat overplays the extent of the judgement. The Court of Appeal has decided that some details of Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 frustrate the purpose of the Legal Aid, Sentencing and Punishment of Offenders Act Schedule 1 paragraph 12(9). The effect of this is that the time limit of 24 months in the regulations needs to be lengthened and the regulations need modifying to include provision for victims of financial abuse. It is impossible to be certain but there is certainly a good chance that the Supreme Court would overrule at least part of the Court of Appeal's judgement if the government chooses to appeal.

I accept that this is now Gove's responsibility but he did not make the current Regulations and has had limited opportunity to amend them given that any amendment has to go through Parliament. If he had been arguing passionately in favour of the current Regulations I would agree that it is egg on his face. In the context however I really don't see it.

That might work if it hadn't been for the fact that Gove has defended the regulations all the way up to the Court of Appeal.

The government has little choice but to defend the law and statutory regulations as they stand. Even if the regulations concerned had been made by Labour and Gove thoroughly disagreed with them his department would still defend the case. That's just the way it works.

It's definitely good news if DV victims can access legal aid, but (I can't believe I am saying this) actually Gove hasn't done too badly in his new job and he has reversed some of the stupider decisions made during the previous administration. He's certainly a big improvement on his predecessor. (Admittedly grayling was not exactly a tough act to follow).

No, it's not in the least unknown for government departments to concede when they know they're in the wrong. Gove did actually do it when judicial review proceedings were taken challenging statutory guidance on school transport issued by the Department for Education.

Withdrawing statutory guidance which has not been through a proper consultation is very different to changing statutory regulations. Statutory guidance is just that, guidance. It is not the law. It is guidance on the law. Guidance can therefore be challenged on the grounds that it does not correctly reflect the law.

Statutory regulations however, take the form of a statutory instruments which means they are the law, albeit of lesser status than primary legislation. I do not know of any case where a government of any political colour has failed to defend statutory regulations.

On the other hand, I know of instances when regulations have been quietly withdrawn or changed either after receipt of a pre-action letter or after the issue of judicial review proceedings. They don't all get publicity.

Regulations that have been approved by parliament cannot be quietly withdrawn or changed.

As around 90% are subject to the negative resolution procedure, changes can and do go through very quietly indeed.

Even with the negative resolution procedure all changes must be laid before parliament. The change will also be recorded on legislation.gov.uk where it will be possible to find both the original regulations and the amendment. Whilst that may not generate publicity I would not regard that as quietly withdrawing or changing regulations.

Can you give an example of a case where the government has amended regulations in the face of a legal challenge?

I didn't anywhere suggest that the changes weren't laid before Parliament, nor that the changes were in any way secret.