Legal advice and funding - Amendments - CLS funding - Funding code

R (on the application of Evans) v Secretary of State for Justice: DC (Admin) (Lord Justice Laws, Mr Justice Stadlen): 12 May 2011

The claimant civil liberties campaigner (E) brought a claim for judicial review of the decision of the first defendant, lord chancellor, and second defendant, secretary of state, to enact amendments to the Legal Services Commission funding code.

Under the amendments, which came into force on 1 April 2010, public interest challenges by way of judicial review would be ineligible for public funding where the claimant stood to gain no direct benefit from the action.

A consultation paper stated that the purpose of the amendments was to use limited funds in the best way possible.

The prospective saving to the public purse amounted to £50,000- £100,000.

In correspondence before the consultation, the secretary of state for defence raised concerns about publicly funded judicial review applications relating to events in Iraq, stating that adverse judgments could affect the government’s policy interests.

Reference was also made to an earlier successful claim for judicial review brought by E, concerning the treatment of captured detainees in Afghanistan, which had been publicly funded.

Emails revealed that internal meetings between the two departments had also taken place concerning the issue.

E submitted that the consultation process had been flawed because it did not disclose the true reasons for the amendments.

E also argued that the amendments were driven by the concerns expressed by the secretary of state for defence, which should not have been a material consideration.

Held: (1) The letter from the secretary of state for defence to the Ministry of Justice asserted that the consequences of an adverse result in a public interest judicial review case was a good reason for the denial of public funding to bring the case.

Such a position was not open to the government.

For the state to inhibit litigation by the denial of legal aid because the court’s judgment might be unwelcome or damaging would constitute an attempt to influence the incidence of judicial decisions in the interests of government.

It would therefore be inimical to the rule of law.

That did not mean that the state was bound to fund such litigation.

The lord chancellor was perfectly entitled to promulgate criteria such as the amendments under challenge, but only for legally proper reasons.

The reasonable prioritisation of scarce public funds would be capable of amounting to such a reason (see paragraphs 25-26 of judgment).

(2) The Ministry of Defence was the only department to make representations to the Ministry of Justice addressing the proposed amendments, and the prospective saving to the public purse to be achieved by the amendments amounted to no more than £50,000-£100,000.

On the facts, the concerns expressed by the secretary of state as to the consequences of an adverse result in some cases, including E’s earlier case, exerted some influence in the promulgation of the amendments.

In those circumstances, a legally inadmissible consideration was taken into account and the amendments therefore had to be quashed (paragraphs 28-29).

(3) There was an overarching requirement of fairness for the standards of consultation.

Those standards included a duty to give sufficient reasons for the proposal in hand to enable consultees to respond intelligently.

The consultation process in the instant case fell short of those standards, R v Islington LBC Ex p East [1996] ELR 74 QBD and R v Brent LBC Ex p Gunning 84 LGR 168 QBD considered.

The concerns of the Ministry of Defence were material to the proposed amendments.

Accordingly, consultees should have been informed that they were a factor.

Since that was not done, the consultation process was legally defective, and for that reason also the amendments should be quashed (paragraphs 30-33).

Application granted.

Tim Otty QC, Tom Hickman (instructed by Public Interest Lawyers) for the claimant; Sam Grodzinski QC (instructed by Treasury Solicitor) for the defendant.