In another case demonstrating the willingness of the Courts to intervene in decisions relating to public spending cuts where those decisions have not been properly taken in accordance with public law principles, the Divisional Court quashed amendments to the Legal Services Commission Funding Code. The amendments would have withdrawn public funding from almost all public interest judicial review cases.

Key Points

  • It is not open to the Government to inhibit litigation by withdrawing legal aid on the basis that adverse court judgments might be unwelcome or damaging to it.
  • Where legally inadmissible considerations influence proposals to amend a Government code, the resulting amendments will be quashed.
  • Where certain concerns are material to a consultation proposal, procedural fairness requires that consultees are told about them.  

The amendments to the funding code

Between July and October 2009, the Labour Government consulted on proposed amendments to the criteria under which the Legal Services Commission ("LSC") awarded legal aid funding in judicial review cases. These proposals (the "Amendments") made 'pure public interest' judicial review challenges (in which the claimant stood to receive no direct benefit) ineligible for legal aid, except where such claims promoted an environmental benefit. The Amendments were introduced on 1 April 2010 and the Government estimated that they would save the state £50-100,000.

Peace activist Maya Evans brought a judicial review claim challenging the Amendments on three grounds:

  1. the Amendments exceeded the powers granted by the Access to Justice Act 1999 (the "Act"), under which they were purportedly made, and were therefore unlawful; 
  2. it was irrational to limit the exceptions solely to environmental claims; and
  3.  the consultation process leading to the Amendments was procedurally unfair because: (a) the Secretary of State ("SoS") had not revealed the true reasons for proposing the Amendments; and (b) those reasons were not legally material and were therefore irrelevant.

What the Court decided

The Court rejected the first and second grounds of challenge. The discretion given to SoS in deciding which criteria could be included in the LSC Funding Code was broad enough to permit the Amendments. The environmental exception reflected the requirements of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the "Aarhus Convention"). It was neither inconsistent nor irrational for SoS to accommodate the Aarhus Convention requirements in the Amendments without promoting access to justice more widely.

To succeed on the third ground, the claimant needed to prove that correspondence and meetings between the Ministry of Defence and the Ministry of Justice in relation to legal aid that took place before the 2009 consultation had materially influenced the proposed Amendments and invalidated the consultation exercise. In a November 2008 letter, the then Defence Secretary had expressed concerns that if 'pure public interest' judicial review cases continued to be eligible for legal aid, the consequences of adverse judgments in claims "arising out of the intervention in Iraq…could be extremely serious for [the UK’s] defence, security, and foreign policy interests". The claimant argued that this was the true reason for the Amendments, and that it had not been properly disclosed in the consultation process so as to give consultees a chance intelligently to respond. Further, this reasoning was legally irrelevant to the decision.

Lord Justice Laws interpreted the Defence Secretary's remark as a clear assertion that the dangers of losing public interest judicial review claims were a good reason for denying public funding to them. This reasoning was "frankly inimical to the rule of law". The evidence suggested that the Defence Secretary's position had influenced the process by which the Amendments were formulated. Despite this, the consultation paper did not inform consultees that these concerns partly explained the Amendments. Indeed, the Court found that the consultation paper was disingenuous on the issue, simply stating that: "[t]he Act is not intended to provide funding for purely representative litigation". This statement was published within weeks of the Government accepting that Maya Evans had a right to bring just such a publicly funded claim, in the case of R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin).

Since SoS had failed to bring concerns material to a consultation proposal to the attention of consultees as fairness demanded, and had taken into account legally inadmissible considerations, the Amendments were quashed.

Comment

In the context of the Government's current programme of public spending cuts, the use of judicial review to challenge these decisions is on the increase. It is clear from the judgment in Evans that the Government is not bound to fund judicial review claims, but that any withdrawal of funding must be for legally proper reasons – fairly disclosed to consultees where necessary. The reasonable prioritisation of scarce public funds might be a proper reason to withdraw ‘pure public interest’ legal aid in future, but the Government must act lawfully, reasonably and fairly in taking such a decision.

The maintenance of the rule of law requires a robust separation of powers with the Courts counterbalancing the executive. Evans illustrates that the judiciary will intervene to unravel Government actions that weaken the supervisory function of the Courts by reducing access to judicial review, if such actions are tainted by irrelevant or inadmissible considerations.

R (Evans) v Secretary of State for Justice [2011] EWHC 1146 (Admin)