US readers may find that wrapping our minds around this one takes a bit of effort.
In a recent case, a British court has criticized the government for secretly trying to block legal aid funding for cases that challenged torture, by changing the rules governing funding to exclude cases in which the applicant for funding did not have a direct interest in the outcome. Ultimately it blocks changes to legal aid funding rules. Here is the beginning of the story from the decision:
2. The claimant is a civil liberties campaigner and peace activist. She came to public prominence in October 2005 when she was arrested and convicted under s. 132(1) of the Serious Organised Crime and Police Act 2005 of an offence of holding an unauthorised demonstration. What she had done was seek to read out at the Cenotaph the names of British soldiers and Iraqi civilians who had died in the Iraq war. In 2008 she issued judicial review proceedings (“Evans No 1”) against the Secretary of State for Defence, claiming that it was unlawful for United Kingdom officials to hand over captured detainees in Afghanistan to the Afghanistan National Directorate of Security (“NDS”) because to do so would expose them to a real risk of torture. The claim was vigorously resisted. On 24 September 2008 the Treasury Solicitor wrote to the LSC asking them to “reconsider whether [the claimant] should be granted legal aid for the purposes of her threatened application for judicial review”. However, the LSC did not accede to the Treasury Solicitor’s request, and at length granted public funding for the challenge. (Note: LSC stands for Legal Services Commission.)
The litigation wins. But the story does not end there. Amendments are proposed to prohibit legal aid funding cases in which the proponent reaps no direct person benefit. I guess its like a US Federal court standing requirement, but not directly cutting off the litigation, only through cutting its funding. Interestingly, there is an exception for benefit to the environment, for which funding would remain available. From the court decision.
I will refer to the new provisions as “the amendments”. The effect of the amendments (I summarise) is that a public interest challenge by way of judicial review, where the claimant stands to gain no direct benefit for himself or herself, is ineligible for public funding through the Legal Services Commission (“the LSC”) unless the claim promotes real benefit for the environment.
Now the story gets complicated. Turns out that the Ministry of Defense has been involved in urging these changes in order to cut off cases like the torture challenge. This from part of the paper trail between Defense and Justice:
“But I was if anything more concerned to hear from my officials that a more recent application for community legal funding for an action against the MOD arising out of the arrangements for transferring persons detained in Afghanistan to the custody of the Afghan government has been successful, despite the fact that no instance of wrongdoing has apparently been alleged and the applicant is an individual who appears to have no standing beyond a general interest in human rights. We made representations against the application for funding but these were rejected; no reasons were given…
This decision leads me to wonder whether the time is right for a look at the rules under which [the LSC] makes its decisions in judicial review cases, particularly in cases where the applicant is not personally affected by the decision complained of or where no example of wrongdoing is adduced. I do not necessarily argue that there should be a total bar on public funding in such cases. But it does seem to me that the rules under which the Commission operates might usefully reflect the point that they are likely to be accorded a lower priority for funding than applications made by or on behalf of named victims of alleged maladministration or wrongdoing…”
Ultimately, the court strikes down that portion of the amendments to the code governing grants of legal aid requiring direct interest.
On the facts I conclude that the concerns expressed in the Secretary of State’s letter of 29 November 2008 as to 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.
From a US perspective, there is much to ponder here:
- Availability of funding for such a broad range of issues though legal aid
- Apparent lack of general standing requirements, at least compared to the US
- Willingness to strike a whole amendment, because of one area of improper consideration
Those interested in UK press coverage can look at the Guardian here.
Personal note in the small world department: There are actually two judges who decided the case. One, Mr Justice Nicholas Stadlen, appears to be the same person who was at my high school in London, and came on the same exchange program to the US in 1968 that got me over to here Our paths have since, in at least some ways, diverged.
Update: Richard Moorhead has a far more comprehensive (and less cheerful) analysis here. Read it.