Minister for Legal Aid v Main, R (on the application of)

The court considered the lawfulness of the Lord Chancellor's refusal to authorise public funding for full legal representation of a bereaved family at the coroner's inquest following the Ufton Nervet rail disaster. The statutory framework under the Access to Justice Act 1999 (notably section 6(8) and the Lord Chancellor's guidance) permits exceptional funding where either there is a significant wider public interest in the family being represented or funded representation is necessary to secure an effective Article 2 investigation. The Administrative Court had quashed the Minister's decision on grounds of Wednesbury irrationality and incompatibility with Article 2, partly because it found the Minister had failed to give adequate weight to the Legal Services Commission recommendation and the coroner's view and had undervalued the divergence of interests between the travelling public and other represented parties.

The Court of Appeal allowed the appeal. It held that courts should exercise particular caution in reviewing discretionary public spending decisions; the Minister was entitled rationally to conclude that full legal representation was not required for the coroner to investigate the public safety issues and that there was insufficient public benefit to justify authorising the expenditure. The court also held that the Article 2 jurisprudence did not establish that, in these facts, Article 2 required state-funded advocacy for the family; it declined to decide whether Article 2 was engaged on the facts. The offer of Legal Help was a lawful and potentially adequate alternative.

Background and facts:

• In November 2004 a train struck a car on a level crossing at Ufton Nervet; five passengers died, including the claimant's mother and sister. The train was operated by First Great Western on infrastructure owned by Network Rail. Various public investigations had been carried out (British Transport Police, RSSB, HSE).
• At a pre-inquest hearing the coroner identified specific safety issues to be investigated at the inquest, including obstacle detection at crossings and the use of laminated windows to prevent ejection of passengers.

Procedural posture:

• The Legal Services Commission requested exceptional funding from the Lord Chancellor under section 6(8)(b) of the Access to Justice Act 1999; the Minister refused. Owen J in the Administrative Court allowed the claimant's judicial review and quashed the Minister's decision (CO/1357/2006). The Lord Chancellor (by the Minister) appealed with permission given by Richards LJ; this Court heard the appeal on 25 October 2007 and gave judgment on 19 November 2007. Funding was provided pragmatically so the appeal was academic as to the inquest itself but raised principles of wider application.

Nature of the application and issues:

• (i) Relief sought: quashing of the Minister's refusal and authorisation of legal aid funding for full legal representation at the inquest.
• (ii) Issues before the court: (a) whether the Minister lawfully and rationally rejected the LSC recommendation that funding should be provided where there is a significant wider public interest (SWPI) in representation; (b) whether Article 2 of the European Convention on Human Rights required the state to fund representation to ensure an effective investigation; and (c) whether the alternative of Legal Help was adequate.

Court's reasoning:

• The Court of Appeal emphasised deference in reviewing discretionary spending decisions, observing that ministers must set priorities across competing claims on public funds. A Wednesbury challenge requires a clear irrationality in that context.
• On the SWPI ground the court held that the Minister was entitled to assess whether funded representation would materially increase the inquest's capacity to yield benefits to the wider public, taking account of the substantial independent investigations already carried out (including the RSSB report). The court did not accept that the Minister's decision was necessarily irrational for concluding that full representation was not required to enable the coroner properly to investigate the identified safety issues, and that Legal Help could enable the family to put submissions and identify matters for the coroner to explore.
• On Article 2 the court reviewed the general principles: the State's duty to provide a regulatory and investigatory framework to protect life and, where deaths potentially engage State responsibility, to ensure an adequate investigatory response. The court concluded that, on the facts of this case (where the primary cause was criminal conduct by a private citizen and significant independent inquiries had been conducted), Article 2 did not require the state to fund full advocacy for the family. The court declined to decide finally whether Article 2 was engaged, treating that as academic for present purposes.
• The court also found the Administrative Court had not been justified in holding Legal Help inadequate as a matter of law; the issue of adequacy was fact-sensitive and the Minister could lawfully conclude Legal Help would be sufficient.

Wider observations:

• The court warned against elevating illustrative precedent into rigid rules and stressed caution before imposing funding obligations that would burden the public funding system without clear legal basis.

Appeal allowed. The court held that the Minister's refusal to authorise exceptional public funding for full legal representation at the inquest was not Wednesbury irrational in the context of discretionary spending and the guidance under the Access to Justice Act 1999; the court further held that Article 2 ECHR did not, on these facts and having regard to substantial independent investigations, require state-funded advocacy for the family. The Administrative Court's order quashing the decision was set aside.

Appeal from Queen's Bench Division (Administrative Court) MR Justice Owen (CO/1357/2006). Owen J allowed the claimant's judicial review on 2 April 2007. Permission to appeal granted by Richards LJ on 15 May 2007. This Court delivered judgment allowing the appeal on 19 November 2007 ([2007] EWCA Civ 1147).