What is covered by legal aid has not been set in stone by the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('the Legal Aid Act'). LAG expects that both secondary legislation and test cases will influence the scope of the legal aid system and the regulations which govern it.
The rules on qualifying for help in domestic violence cases proved extremely controversial during the passage of the bill. Parliamentarians in all parties were concerned that victims would be left unprotected. At the third reading of the bill in the House of Lords, an amendment on the circumstances in which a victim of domestic violence could qualify for legal aid was narrowly defeated. Peers voted 238 votes both for and against the amendment, meaning the government won the day under parliamentary convention. Before this the government had made significant concessions allowing doctors' reports and admission to a refuge to be included in the criteria for qualifying for legal aid. Emma Scott of Rights of Women argues that while this was an important step:
'It does not go far enough to reflect the many different routes that domestic violence victims choose to escape abuse. The regulations, which will provide the framework for eligibility for family law legal aid will still exclude potentially thousands of victims of domestic violence.'
Emma Scott says out of 124,895 women accessing Women’s Aid England member services in 2010, only 17,615 were successful in finding refuge places. The most common reason for not being admitted was lack of beds. She believes over 107,000 women accessing domestic violence outreach services would potentially be ineligible for family law legal aid to resolve important children and financial disputes following the breakdown of their relationship. LAG understands that the regulations on the criteria for qualifying for legal aid in domestic violence cases will be brought before parliament in secondary legislation in the autumn.
'It is vital that we use this opportunity to continue lobbying and campaigning to persuade the government to include evidence of accessing specialist domestic violence services in the regulations. Without it, thousands of women and children will become unable to access justice and remain at risk of violence and abuse,' says Emma Scott.
Discussions are ongoing among campaign groups concerned with access to justice over likely test cases to challenge the legislation. Two years ago the government and the Legal Services Commission (LSC) lost a judicial review case brought by The Law Society and firms concerned about the fairness of the LSC’s procurement procedures, which if they had stood would have meant nearly half the 2,400 firms with family contracts losing them. Much more is at stake with the changes introduced by the Legal Aid Act as large parts of civil legal aid, including family law, will go. LAG sees test cases as a vital part of an ongoing campaign to try and repair the damage the Legal Aid Act will reap on access to justice for the public.
See June’s Legal Action magazine for an article on the next steps in the campaign against the Legal Aid Act.
Photograph: Justice for All
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Due process deliberately requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
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