Law Society Gazette: Monday 16 May 2011 by Catherine Baksi
A civil liberties campaigner has won a judicial review of the government’s attempt to remove legal aid for cases brought ‘in the public interest’.
Maya Evans, represented by Birmingham firm Public Interest Lawyers, challenged amendments made to the Legal Services Commission’s funding code that meant public interest challenges by way of judicial review, where the claimant stands to gain no direct benefit, were ineligible for public funding.
The High Court ruled that the changes, introduced by the Labour government in 2010, must be quashed.
Lord Justice Laws said that the MoJ had taken into account a ‘legally inadmissible’ consideration when taking the decision to amend the funding rules.
That consideration was a concern raised by the Ministry of Defence over the impact of adverse judicial review decisions stemming from the intervention in Iraq.
The MoD had written to the MoJ in 2008 questioning the availability of public funding in those cases where the applicant is not personally affected by the decision complained of.
Laws said: ‘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 court also held that the consultation process in advance of the change was ‘legally defective’, because consultees were not informed that the MoD’s concerns were ‘part of the mix’, even though they were material to the proposed changes and to the decision to make the amendment.
The court ruled that the amendments should be quashed.
However, the judge added that the state was not bound to fund such litigation, and that it would be entitled to put in place criteria that limited funding, but only for ‘legally proper reasons’.
Laws said: ‘The reasonable prioritisation of scarce public funds would in my judgment be capable of amounting to such a reason.’
Evans’ solicitor Daniel Carey said: ‘It’s a very significant decision as it is important to preserve public interest cases.’
He said that such cases arose infrequently, but that sometimes those who are affected by decisions are ‘not able to knock on the door of the court themselves’.
Carey offered the examples of someone held incommunicado in detention, or a person in a persistent vegetative state with no family members who want to bring a case.
The Ministry of Justice said it is ‘carefully considering’ the judgment and deciding whether or not to appeal.