The Ministry of Defence lobbied behind closed doors to restrict the provision of legal aid to claimants questioning the treatment of military detainees in Iraq and Afghanistan, the high court has heard.
At a hearing challenging changes to legal aid made last year, Tim Otty QC said tighter controls on funding judicial reviews now imposed by the Ministry of Justice would have prevented courts hearing torture allegations and the creation of extra safeguards to protect suspects.
Repeated representations by the former defence minister, Bob Ainsworth, to the Ministry of Justice during 2008 and 2009 were not disclosed during a public consultation exercise on changing legal aid entitlements, he said.
The changes came at a time when the government was suffering successive political embarrassments over claims that al-Qaida suspects had been subjected to torture overseas while being questioned by the intelligence services.
There was "no candid disclosure" of the real reasons for restricting funding and the process was therefore "legally flawed", Otty added. "The Ministry of Justice treated the MoD's concerns as central to its approach."
In one email sent in June 2009, the high court heard, "there was an express indication that the MoJ 'supported' the concerns raised" and would act on them speedily.
"The genesis for these [changes to legal aid] rest solely in concerns expressed by the MoD … and in terms of the cost burdens from judicial reviews relating to Afghanistan and Iraq."
The MoD was particularly concerned about a judicial review brought by one claimant, Maya Evans, who had no direct personal involvement in the treatment of detainees. The new legal aid rules introduced following the Ministry of Justice's consultation process specified that funding would only be provided to claimants who might receive "real benefits", personally or for the environment. Tuesday's challenge has been brought on her behalf.
The MoD insists that the new provisions introduced by the Legal Services Commission do not prevent judicial reviews being taken by claimants who are personally affected.
Sam Grodzinski, counsel for the MoD, argued that there was no general obligation for public bodies to disclose to those being consulted the arguments submitted by other groups or to explain why it started any review of policy.
The UK's obligation to prohibit torture, he said, did not require public funding of cases where "extra-territorial torture by third country authorities is alleged and where the claim is brought by a person wholly unconnected to the individuals said to be at risk of torture".
Judgement is expected to be reserved.