Pyrrhic victory or ticking bomb: Evans and the future of legal aid

The Evans judicial review judgment sheds an interesting light on legal aid reform pre-Coalition. It is a challenge to changes in the legal aid Funding Code which sought to prevent public interest claims being funded under legal aid where the legal aid applicant gains no direct benefit for himself or herself from the legal proceedings (unless the public interest related to the Environment).

The case arises from a human rights activist’s challenges to the MODs policy of handing over detainees to the Afghan and Iraqi security services given the risk that such detainees would suffer torture. Laws LJ underlines the significance of the case early in his judgment by saying that without such challenges, “It seems likely that… …the situation of the detainees liable to be handed over to [the foreign security services] would never have been subject to the scrutiny of the English courts.”

There were several grounds for challenging the change in legal aid rules:

  • Ground 1– (1) The consultation process leading to the amendments was flawed because disclosure of documents showing the true reasons for the amendments were not disclosed; and (2) those reasons were bad in law because they consisted in, or at least were driven by, certain concerns expressed by the Secretary of State for Defence which were not legally material.
  • Ground 2 – that the amendments are ultra vires the 1999 Act.
  • Ground 3 an irrationality challenge of criteria which, in the form of the amendments, allow LSC funding for public interest challenges in what may be called environmental cases, but in no other cases. This ‘plants not people’ exception was a response to obligations under the Aarhus Convention.

Only Ground 1 was successful.

The challenge arose because before the changes to the Funding Code were promulgated the then Secretary of State for Defence, Bob Ainsworth, wrote to Lord Bach, Parliamentary Under Secretary of State at the Ministry of Justice about the problems posed to the MoD in fighting off “judicial review applications arising out of the intervention in Iraq.” Mr Ainsworth, noted “In most of these cases the consequences of an adverse judgment could be extremely serious for our defence, security, and foreign policy interests and we are defending them vigorously, although at some cost in terms of time and effort in our legal and operational policy Departments.” Ms Evan’s counsel alleged this was the trigger for the amendment proposals.

Laws LJ found that under the Access to Justice Act 1999, the MoJ did have discretion wide enough to allow for a provision limiting the grant of legal aid in this way in matters of public interest. He found that the environmental exception (being a response to Aarhus) was not irrational nor was a failure to contemplate other obligations under public international law in the exceptions (e.g. to forestall torture). “The United Kingdom’s obligation to prohibit and/or forestall torture does not require the establishment of ―access to justice measures analogous to those insisted on by Aarhus. There is in my judgment no inconsistency, or irrationality, in the Secretary of State’s choosing to accommodate the one but not the other in the amendments.”

Laws LJ was however concerned by the original discussions between between Mr Ainsworth, Lord Bach and subsequent communications also involving Jack Straw (the then Lord Chancellor). He emphasised some key passages from Mr Ainsworth:

―… [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…‖

Laws LJ assessed these as follows:

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.

To be fair to Mr Ainsworth, his primary stated justification for making it harder to grant legal aid in such circumstance appears to be the granting of legal aid to foreign nationals which is sometime made, in his view, in the absence of allegations of wrongdoing. In locating this discussion in the context of what happen if such applications are successful, however, it is not difficult to see how he could be interpreted as saying that it would be jolly helpful if we could side-step the rule of law, at least in sofar as the legal aid system helps police it, in these cases. Laws LJ puts it thus:

“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.”

Having said that, the judgment takes a rather more complex turn. Laws LJ points out the State is not bound to fund such litigation and that they can limit legal aid for such cases but only if they do so for legally proper reasons and – as we shall see- if they are reasonably open about those reasons. Such reasons would, in his view, clearly include reasonable prioritisation of scarce public funds (although it is worth noting at this point that the prospective saving to the public purse was estimated by government as no more than £50,000 – £100,000).  Counsel for the Secretary of State for Defence sought to argue that Mr Ainsworth’s comments had merely acted as a trigger prompting the Ministry of Justice to consider whether public funding should be granted for purely representative cases (i.e. those where the applicant had no direct interest themselves). Laws LJ recognises that this might have been so but also that “the influence of Mr Ainsworth’s more pointed anxieties” had not necessarily been excluded and indeed, “the contemporary record, found in the e-mails, strongly suggests that these concerns were not excluded as the policy was being formulated.” Laws LJ seems to regard it as sufficient that Mr Ainsworth’s concerns about the “consequences of an adverse result” in a judicial review “exerted some influence in the promulgation of the amendments.” (emphasis added). A legally inadmissible reason for the amendments had thus been taken into account, and the amendments had to be quashed for that reason (the second limb of Ground 1).

That deals with the second arm of Ground 1. But the first arm, failure to disclose those reasons, was also regarded as important. Failure to disclose prevented those reasons being challenged by interested parties. The Lord Chancellor could have been “expressly confronted with the assertion that he was contemplating a legally irrelevant factor. He could have made it plain, before the amendments were made, that he disavowed it.” And, it must be assumed from the judgment, if he had done so the amendment would stand (unless it could have been proven that the disavowal was disingenuous). So, because the standards which the courts have set for meaningful consultation is the overarching requirement of fairness and because that standard “includes a duty to give sufficient reasons for the proposal in hand to enable consultees to respond intelligently,” failure to disclose the MoD’s concerns as one of the material reasons for amending the Code was in Laws LJ’s judgment legally defective.

This leads me to wonder about the ramifications of this judgment for the current Government’s proposed legal aid and civil justice reforms. It is not difficult to imagine expressions within Government of views that support legal aid cuts on the basis that it, however subtly expressed, helps Government Departments – or other public authorities – avoid legal liabilities. Is there evidence lying in government files relating to the need to dampen down special educational needs claims, reduce spending on housing problems, that cutting the take up of welfare benefits would be helpful, or that dampening down medical negligence claims is beneficial even though this means dampening down reasonable claims?What about indications that the cuts will smooth the work of the UKBA? If the answer to any of these questions is yes, and any such reasons had some influence on Government policy, then this appears to be an attempt, in Laws LJs terms, to avoid the rule of law, to therefore take into account a legally inadmissible reason, and so is unlawful.

To be safe from challenge, does the government simply have to acknowledge these reasons and give opponents the chance to respond? If they do so, they will be safe under the judgment unless those reasons are themselves unlawful (in which case they can disavow them, and that is the end of the matter). Of course, one cannot see such challenges being mounted will-nilly. I would think there will need to be some fairly significant suspicions of smoking guns before anyone attempted it. One can also applaud the sentiment of the judgment, openness in political dialogue around access to justice, but wonder at the outcome. Ultimately, if that is right, rule of law concerns are avoidable by some measure of openness followed by a full-throated disavowal of influence. One wonders how much was spent to establish that.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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One Response to Pyrrhic victory or ticking bomb: Evans and the future of legal aid

  1. Pingback: UK Court Criticizes Govt for Sectetly Trying to Block UK Legal Aid Funding for Anti-Torure Cases: Court Overturns Standing Regulations | Richard Zorza's Access to Justice Blog

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