Evans, R (on the application of) v The Lord Chancellor & Anor

The statutory scheme confers a broad discretion to formulate legal-aid funding criteria. The factors in section 8(2) of the Access to Justice Act 1999 provide guidance, not a rigid code. Criteria may therefore restrict funding for representative judicial review claims. However, public funding must not be denied because an adverse judgment would be unwelcome or damaging to government interests. Such a consideration is inimical to the rule of law. Consultation must also fairly disclose material reasons for a proposal and provide enough information for consultees to respond intelligently. The amendments were quashed because an inadmissible governmental concern influenced their formulation and because that concern was not disclosed during consultation.

The claimant sought judicial review of amendments to the Legal Services Commission Funding Code introduced under sections 8 and 9 of the Access to Justice Act 1999. The amendments made public funding for public-interest judicial review unavailable unless the proceedings could produce a real benefit for the applicant, the applicant’s family or the environment.

She challenged the amendments on three grounds: statutory vires, irrationality in providing an environmental exception but no equivalent exception for other international obligations, and procedural unfairness arising from undisclosed reasons and legally irrelevant governmental concerns. The central issues were whether the Act authorised the criteria, whether the decision was irrational, and whether the consultation was legally defective.

1. Ground 2 dismissed. Section 8 of the Access to Justice Act 1999 gives the Commission a broad discretion over the content of its funding criteria. The factors in section 8(2), including the importance of the matter and the public interest, are a steer rather than a straitjacket. The Act therefore authorised criteria requiring a real benefit for the applicant, the applicant’s family or the environment.
2. Ground 3 dismissed. The environmental exception reflected obligations arising under the Aarhus Convention. The United Kingdom’s obligations concerning the prevention of torture did not require analogous access-to-justice measures. The decision-maker was not legally obliged to take that consideration into account, and the absence of a comparable exception was not irrational.
3. Ground 1 upheld. Government may prioritise scarce legal-aid resources for legally proper reasons. It may not restrict funding because an adverse judicial review judgment could harm defence, security or foreign-policy interests. That would seek to influence the incidence of judicial decisions in the interests of government and would be inimical to the rule of law.
4. The Ministry of Defence’s concerns had influenced the formulation of the amendments. That was an inadmissible consideration, requiring the amendments to be quashed.
5. The consultation was also defective. Fair consultation required sufficient reasons for the proposal to enable consultees to respond intelligently. Because the Ministry of Defence’s material concerns formed part of the decision-making mix but were not disclosed, consultees could not properly address them. The application for judicial review was granted.

First-instance judicial review proceedings in the Administrative Court. The judgment records earlier proceedings in the same litigation, but no appeal from the decision under challenge.