No legal aid cuts to avoid bad days in court

18 May 2011 by Isabel McArdle

R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin) – Read judgment

The High Court has found that the Ministry of Justice, when making a decision to cease the state’s funding of judicial review challenges on purely public interest grounds (apart from one exception), took into account the fact that to do so would reduce the number of decisions being made which were not in the government’s interests. Unsurprisingly, the Court to concluded that the decision was unlawful and should be quashed.

The Applicant applied for judicial review of a decision by the Respondent to amend the Legal Services Commission (LSC) Funding Code, which funds litigation for those who meet certain criteria. The effect of the amendments, which were introduced in April 2010, was to prevent public funding by the LSC for judicial review proceedings (challenging decisions of public bodies) which were pure public interest challenges. That is, where the Applicant stood to gain nothing from the litigation and was bringing it solely to promote a particular public interest. The one exception was in environmental cases.

The Applicant brought judicial review proceedings on three bases:

i. The consultation process leading to the decision was flawed because certain documents were not disclosed, which showed the true reasons behind the decision, and the reasons for making the decision were bad in law because they consisted of concerns expressed by the Secretary of State for Defence which were not legally material.

ii. The amendments were ultra vires (outside the powers created by) the Act under which they were made.

iii. It was irrational for there to be an exception in environmental cases, but not other types of public interest challenge.

Lord Justice Laws, with whom Mr Justice Stadlen agreed, dealt with Ground 2 first.

Ground 2

The Appellant argued that the Access to Justice Act 1999, which provides for an LCS Funding Code to be created and modified, “does not authorise the formulation of a “brightline” rule or criterion by which funding will be refused in every case where the applicant cannot demonstrate a “real benefit” for himself or his family (or the environment) arising from the litigation” (paragraph 13). The Court of Appeal was not persuaded by this argument: the Act did not require the criteria for funding to conform rigidly with the considerations set out in the Act, but rather created a broad discretion, giving the decision maker guidance.

Ground 3

The Appellant argued that in allowing an exception for environmental cases, the government had acted irrationally. The exception was created to comply with the UK’s obligations under the Aarhus Convention. The Appellant argued that it was irrational not to consider exceptions for other similar grounds, such as compliance with the UK’s international obligations to forestall torture. This ground was also rejected by the Court. This latter obligation, unlike Aarhus, does not require the UK to implement access to justice measures.

Ground 1

This was the most significant ground in the challenge and had two aspects. First, the true reasons for the decisions were not revealed in the consultation process and secondly, those reasons were bad in law, for taking into account immaterial factors. The argument centred on a letter, written by Bob Ainsworth in November 2008 at the time when he was Secretary of State for Defence, and sent to Lord Bach, who was then Parliamentary Under Secretary of State at the Ministry of Justice,  which commented,

“… [T]he Ministry of Defence has been faced with a series of judicial review applications arising out of the intervention in Iraq. In most of these cases the consequences of an adverse judgment could be extremely serious for our defence, security, and foreign policy interests…

… I was if anything more concerned to hear from my officials that a more recent application for community legal funding for an action against the MOD arising out of the arrangements for transferring persons detained in Afghanistan to the custody of the Afghan government has been successful, despite the fact that no instance of wrongdoing has apparently been alleged and the applicant is an individual who appears to have no standing beyond a general interest in human rights…

This decision leads me to wonder whether the time is right for a look at the rules under which [the LSC] makes its decisions in judicial review cases…” (emphasis added).

The Court was strong in its conclusions about the influence of the possibility of adverse decisions for the government on the decision to revise the LSC Funding Code:

“In plain language [the letter of November 2008] seems to me to assert that the consequences of an adverse result in such a public interest judicial review is a good reason for the denial of public funding to bring the case. It needs no authority to conclude that by law such a position is not open to government. For the State to inhibit litigation by the denial of legal aid because the court’s judgment might be unwelcome or apparently damaging would constitute an attempt to influence the incidence of judicial decisions in the interests of government. It would therefore be frankly inimical to the rule of law. The point is one of principle; it is not weakened by the fact that such litigation might be funded by other means. “ (Laws LJ, paragraph 25, emphasis added)

For the state to block legal aid funding, on the basis that a decision which has negative consequences for the government might be made, is clearly constitutionally problematic, raising questions of separation of powers and the rule of law. In restricting access to funding for litigation in order to reduce the number of adverse judicial review decisions made, the government would be actively trying to reduce the incidence of occasions when the judiciary exercises reviewing powers over its decisions.

The state of course is not bound to fund public interest judicial reviews, and they can be funded by private means, but in deciding to whom funding should be given, it is inappropriate for the government to be influenced by the possibility of reducing the number of decisions which are not in its interests.

The Court found that the considerations were not excluded as the decision was made, and legally irrelevant considerations were therefore taken into account. The decision was quashed as a consequence.

On the first limb of Ground 2, the question of whether there was adequate consultation, the Appellant was also successful. There is no general requirement for unpublished advice to be disclosed to interested parties as part of the consultation process, but the requirement of fairness means those parties must have disclosed to them sufficient reasons for the decision. The concerns of the Ministry of Defence, referred to in Bob Ainsworth’s letter, had not been disclosed, so there had not been an opportunity for the interested parties to respond to this factor which had been found to have influenced the decision.

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Read more:

• Council disregards new equality duties in terminating free legal services
• Pyrrhic victory or ticking bomb: Evans and the future of legal aid – Richard Moorhead