Article 15 of CEDAW requires that women and men are to be treated equally before the law.  This has never been more important than it is today. For this reason, this is one of the key Articles of the CEDAW Convention. If our rights are taken away from us, and we can’t fight on a level playing field to get them restored, then those legal and Convention rights are meaningless. It is vital that individuals and organisation know that they can use this to put pressure on the State for access to equality.

On the 1st of April 2013, the Government enacted a law that was to make the most savage cuts to access to Justice by devastating access to legal aid since it was born in 1948.^[i] This act becoming law(LASPO) was against a backdrop of fierce opposition from literally 1000s of stakeholder women’s organisations, lawyers, academics and, cross party MPs, all of whom were worried about the impact on equal access to Justice for women. After all, the Government’s own Equality impact assessment^[ii] stated openly that they fully expected women to be disproportionately impacted as women are by far more dependent on legal aid than men.

This is due to a variety of factors, including more women in insecure and part time work, more women having caring responsibility for children and other dependents, and the ongoing pay gap which is being challenged, once again, in the Employment tribunal ^[iii] led by Samira  Ahmed. So while the  Government insisted that they were preserving legal aid for those who need it most, including victims of Domestic Abuse, the Act itself effectively removed legal protection from 1000s of women and their children who needed protection, but using a really narrow definition of DV (physical abuse only, in the last 12 months). This had to be challenged, and it was challenged using CEDAW in a number of ways.

The first challenge emerged during the consultation period about LASPO in the Supreme Court in the Housing case of Yemshaw^[iv], in which Women’s Aid appeared as interested parties. In the leading Judgement given by Lady Hale, CEDAW’s very wide definition of Domestic Abuse was used to widen the definition in the Housing Act, which in turn was used to widen the very narrow definition of Domestic Abuse evidence for legal aid.

The UK was examined by CEDAW in 2013 just after the Act came in and many witnesses from the third sector wrote a report and attended to give evidence about the lack of access to Justice for women, which resulted in a determination, or judgement against the Government who were directed to fully review the impact of LASPO and to ensure that victims of abuse would automatically get legal aid.

This Judgement of CEDAW was used in the Rights of Women (ROW) case^[v] brought against the Government to seek a Judgement that the impact  of LASPO excluded significant numbers of victims of abuse from access to Justice. The case was given permission to go to a full hearing in the High Court, which the Government opposed and they won. However, in ROW’s appeal to the Court of Appeal, they succeeded, and the court ruled that the Act did not do what the Government stated that it intended to do in terms of victims of abuse.

Following that, the Ministry of Justice formed a working group involving lawyers and ROW to negotiate better access to Justice for victims of DA, and their children. This group has been meeting now for 3 years and some progress has been made. A further determination was made by CEDAW on this point, and also on the Domestic Abuse bill following the hearing in February 2019, which the Commissioners were clear that the Government had to do better.

In the CEDAW working group, these determinations have been used to very good effect to change the law so that it properly protects women and goes some way to challenge inequality in the law such as how women are treated in family court cases, and to ensure that they are protected and feel safe to give their evidence. Sadly, much of the hoped for progress has been delayed by BREXIT, but we are still working hard to keep the pressure on for fairer safer law and legal systems. Get involved!

 

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 Author

Cris McCurley is a CEDAW Shadow report writer and a member of the CEDAW Group. She has given evidence at the last 2 CEDAW hearings

 

 

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References

[i] Legal Aid, Sentencing and Punishment of Offenders Act 2012.

[ii] LASPO Equality Impact Assessment

[Iii] https://www.theguardian.com/media/2019/oct/28/samira-ahmed-employment-tribunal-over-equal-pay-gets-underway?CMP=share_btn_link

[iv] Yemshaw v LB Hounslow [2011] UKSC 3

[v] R (Rights of Women) [2016] EWCA Civ 91.1