Funding Code Amendments Quashed

The Administrative Court gave judgment today in the case of R (on the application of Evans) v Lord Chancellor [2011] EWHC 1146 (Admin). This was a challenge, brought by the peace campaigner Maya Evans, to the amendments to the Funding Code introduced by government following the Legal Aid: Refocussing on Priority Cases consultation. The Code was amended to provide that certificates for Investigative Help and Full Representation would only be granted where the applicant had a direct personal interest in the proceedings. Maya Evans had previously judicially reviewed, funded by legal aid,  the actions of British officials in Afghanistan in handing over to the Afghan authorities on the basis that it would expose them to risk of torture. In the present case, Lord Justice Laws said that

It seems likely that but for Evans No 1 the situation of the detainees liable to be handed over to the NDS [Afghanistan National Directorate of Security] would never have been subject to the scrutiny of the English courts (para 3)

The effect of the Refocussing amendments was that such cases would no longer be funded by legal aid.

Maya Evans therefore brought judicial review on the grounds that the consultation was flawed because

  1. The true reason for the proposals was because of concerns of the Defence Secretary at cases funded by legal aid, but that that was not made clear in the consultation;
  2. There was no power under the Access to Justice Act 1999 to make the amendments to the Funding Code
  3. It was irrational to allow an exception for public interest challenges in environmental cases but not to at least consider other cases where the UK had international obligations

Lord Justice Laws held that there was a broad discretion under s8 of the Act to amend the Code, and that it was not irrational to exercise discretion to allow some types of cases but not others. However, he allowed the application because the concerns of the Defence Secretary at such cases were taken into account in the decision making process. He held

the consequences of an adverse result in the kinds of case to which the letter refers (including Evans No 1) exerted some influence in the promulgation of the amendments. In those circumstances a legally inadmissible consideration was taken into account, and in my judgment the amendments must be quashed for that reason (para 29).

and

Those concerns were material to the proposal, and to the decision to make the amendments. Accordingly consultees should have been informed that they were, so to speak, part of the mix. Because that was not done the consultation process was in my judgment legally defective. For this reason also I would quash the amendments (para 33).

As a result the amendments to Funding Code – criteria 7.2.4 and 7.3.4 – have been quashed. It is not yet known whether the government intends to appeal.

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