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MoJ failed to disclose 'true reasons' for legal aid cut

16 May 2011

The Ministry of Justice failed to disclose the “true reasons” for limiting legal aid for judicial reviews, the High Court has ruled.

A change to the funding code, implemented by the previous government in April 2010, restricted legal aid to people who would gain a “direct benefit” from the result of a case or claims involving the environment.

Giving judgment in R (on the application of Evans) v The Lord Chancellor [2011] EWHC 1146 (Admin), Lord Justice Laws said the background to the change in the funding code was lobbying by the Ministry of Defence.

Laws LJ said the court was told that no department other than the MoD made representations to the MoJ and the cost saving produced by the amending the code was “no more than £50,000 to £100,000”.

Counsel for the claimant, peace activist Maya Evans, claimed that the consultation process leading to the changes was “flawed for want of disclosure of documents showing the true reasons” and “those reasons were bad in law because they consisted of, or at least were driven by, certain concerns expressed by the secretary of state for defence which were not legally material”.

Laws LJ said that, before the consultation paper was published in July 2009, there were “substantial communications” between the MoD and the MoJ.

These included a letter from the then defence secretary Bob Ainsworth to Lord Bach, under secretary of state at the MoJ, and further letters to Lord Bach from armed forces minister Bill Rammell.

Counsel for Evans said the “real basis” for restricting legal aid could be found in a letter by justice secretary Jack Straw in which he said he was “concerned” by the LSC’s decision to fund a judicial review by Evans into the arrangements for transferring people detained in Afghanistan to the custody of the Afghan government.

Straw said in the letter that the consequences of adverse judgments in judicial reviews brought against the MoD following the invasion of Iraq could be “extremely serious for our defence, security and foreign policy interests”.

He went on to say 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...”

Laws LJ commented: “In plain language this 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.”

Lord Justice Laws said that had the MoD’s concerns been disclosed as a factor in decision makers’ mind, “muscular representations” would have been advanced by interested parties.

“The Lord Chancellor would most likely have been expressly confronted with the assertion that he was contemplating a legally irrelevant factor,” Laws LJ said. “He could have made it plain, before the amendments were made, that he disavowed it.”

Lord Justice Laws concluded that the MoD’s concerns were “material to the proposal” and the consultees should have been informed that they were “part of the mix”.

He granted the application for judicial review. Mr Justice Stadlen agreed.

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