Daniel Carey, Public Interest Lawyers
A high court judgment handed down on Thursday strikes a blow in the fight against torture and, just as importantly, against impunity for illegal but secretive decisions of central government.
The high court has quashed changes made to the legal aid rules by the Ministry of Justice (MoJ) to eliminate funding for "pure public interest cases" – cases brought by claimants who do not derive a personal benefit from the litigation. They are a small but important minority of judicial review actions: for example, when a habeas corpus action is necessary to locate a prisoner held in incommunicado detention or subjected to rendition outside the UK, or when the UK is handing over prisoners to torture by the Afghan intelligence service and refuses to allow those prisoners to access the courts. The latter example is a description of the case brought by the peace and human rights campaigner Maya Evans in 2009/2010: in a significant victory the court imposed stringent conditions on future Afghan prisoner handovers and prevented any further handovers to a notorious torture centre in Kabul – conditions that are still in place.
It was during that litigation that defence ministers repeatedly pressurised the MoJ, in secret, to cut off funding for torture litigation. The documents disclosed in Thursday's court case demonstrate a chilling complacency. In one communication Bob Ainsworth, then defence secretary, wrote to a justice minister: "The 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 … This … leads me to wonder whether the time is right for a look at the rules …"
These documents reveal something new about government complicity in torture – that, after Baha Mousa and Binyam Mohamed, the MoD was so desperate to avoid accountability that it stooped to secretly cutting off litigation at its source. Serious questions now have to be asked of these ministers: if they weren't prepared to defend the UK's actions in court, how clean were their consciences regarding the torture allegations? It appears that government complicity in torture extends to attempts to cover it up, and that this complicity goes to the very top of government.
Lord Justice Laws condemned these actions in his judgment on Thursday, stating: "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 … frankly inimical to the rule of law."
The judge goes on to criticise the way the amendments were presented to the public as innocuous cost-cutting measures. He declares that consultation to have been unlawful as well. In doing so he has underlined the need for judicial vigilance amid the current wave of deficit reduction cuts – they are the perfect cover for decision-makers to eliminate bothersome services such as legal aid, or aspects of the state that don't fit within their own agendas such as libraries, Sure Start centres, services to the vulnerable etc. It is right and proper that the courts form the last line of defence against these kinds of arbitrary and ideologically driven cuts.
In Thursday's victory, Maya Evans has proved the worth of the very cause that she was fighting: this too was a public interest case, from which she derived no personal benefit. Without it, we would have no idea of government's attempts to avoid accountability to the courts for torture. WikiLeaks and investigative journalism have their place, but so does judicial review and the duty of disclosure, which is imposed on government in such cases. It was only through disclosure that these documents were revealed and only through the courts that these rule changes were quashed. This judgment is an important victory for the rule of law.