The English High Court has quashed a decision to remove legal aid provision for judicial reviews where the applicant stands to gain no personal or family benefit. There is an exception for environmental challenges.
R (on the application of Evans) v. The Lord Chancellor and the Secretary of State for Justice concerned an Applicant who had previously judicially reviewed a decision to transfer detainees in Afghanistan to the Directorate of Security, as they would be exposed to a real risk of torture. She was granted legal aid to do so.
That judicial review provoked the Ministry of Defence to urge the Ministry of Justice ("MoJ") to review legal aid rules for public interest challenges, noting "the consequences of an adverse judgment could be extremely serious for our defence, security and foreign policy interests".
The MoJ subsequently amended the legal aid rules to exclude public interest challenges without private benefit, making an exception for environmental cases.
This High Court case challenged that amendment. The Court held that the underlying decision was flawed by two factors. First, the MoJ had taken into consideration a legally inadmissible consideration, namely the consequences of adverse judgments for the government. Secondly, the MoJ had failed to disclose the real reasons for the legal aid amendment in its consultation process.
The Court observed "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 be frankly inimical to the rule of law".
It should be noted that the Court did leave it open to make such an amendment for proper reasons such as "reasonable prioritisation of scarce public funds", commenting that the State was not "bound to fund such litigaton".
Readers of the Bulletin may recall the UK Government's consultation paper proposing cuts to legal aid.
Among the proposals are extensive cuts to legal aid granted to asylum seekers. The proposals come at a time when law centres across the UK find themselves in financial difficulties. The consultation proposes to cut legal representation and advice provided to asylum seekers which does not relate to their detention or asylum application. For example, it proposes to remove legal aid in relation to applications for asylum support (a welfare benefit).
A number of organisations opposed to the cuts have grouped together to fight their implementation under the umbrella group "Justice for All". For further information, please click here. To view a commentary on the proposed cuts by Open Democracy, please click here. Open Democracy is an organisation that publishes news analysis concerning human rights and democracy issues all over the world.
Cuts to legal aid granted to asylum seekers are not unique to the UK. As FLAC noted in their submission to the UN Universal Periodic Review in March 2011, the Refugee Legal Service suffered a 21% reduction in its budget for 2011. The Refugee Legal Service is the branch of the Legal Aid Board designated for legal needs of persons seeking asylum in Ireland.