“The claim itself is brought in the public interest, with the benefit of public funding. It raises issues of real substance concerning the risk to transferees and, although the claimant’s standing to bring it was at one time in issue, the point has not been pursued by the Secretary of State.”
“7.2.4 Client Interest Investigative Help will be refused unless the proceedings have the potential to produce real benefits for the applicant, for the applicant’s family or for the environment. However funding will not automatically be withdrawn if the applicant ceases to have a direct personal interest during the course of the proceedings.”
“You will probably be aware that the Ministry of Defence has been faced with a series of judicial review applications arising out of the intervention in Iraq. In most of these cases the consequences of an adverse judgment could be extremely serious for our defence, security, and foreign policy interests and we are defending them vigorously, although at some cost in terms of time and effort in our legal and operational policy Departments. There was publicity recently when Patrick Mercer MP criticised the grant of community legal funding for one of these cases, brought on behalf of the alleged killers of two British soldiers who face transfer to the Iraqi authorities for trial. 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...”
“1. The Minister for Armed Forces [sc. Mr Rammell] met with Lord Bach... to discuss legal aid funding in some categories of judicial review cases on22nd June 2009 ... 2. Lord Bach opened by stating that both he and Jack Straw were supportive of the concerns raised by Bob Ainsworth in his letter dated28th November 2008 and were looking to address them speedily. The focus, though, should be on the rules governing the award of legal aid rather than on individual cases, which Ministers could clearly not interfere in...”
“I agreed to write to expand on our discussion on 22 June, following the letter from Bob Ainsworth... During our meeting I explained that both the Justice Secretary and I were keen to look afresh at the rules for the granting of civil legal aid to ensure that limited legal aid resources were being targeted appropriately on priority cases...”
“I was very pleased with the way in which you addressed the issue of public funding for judicial reviews, which continues to be of serious concern to this Department...” • Consideration of this point formed part of the wider consideration of access to legal aid to support judicial review cases, under the more general rubric of looking at what it was desirable to fund from finite resources...”
“8. It was reported to officials in January 2009 by the Private Office of the then Justice Secretary, the Rt Hon Jack Straw MP, that this matter had been raised with the Justice Secretary by the then Defence Secretary, the Rt Hon John Hutton MP. 9. The MoJ had not appreciated that a judicial review case where the claimant had no connection to the decision under challenge could pass the Funding Code merits criteria. It was also considered that the requirement of the courts that claimants must have sufficient standing before they bring a claim would mean that such a case would be unlikely to pass the prospects of success test for funding. 10. MoJ officials asked MoD officials for details of the case to help Ministers to understand how legal aid funding had been granted, and so that further enquiries could be made with the LSC about the basis for funding the case, and these were provided by MoD.”
“An underlying principle of [the 1999 Act] is that the claimant has a direct interest in and will personally benefit from the action. The Act is not intended to provide funding for purely representative litigation. Section 4.5 of the Funding Code’s Standard Criteria sets out that ‘an application will be refused unless it is for the benefit of a client who is an individual...’. This should make clear that proceedings cannot be brought about matters to which the applicant has no connection or direct interest. However, there have been cases where applicants have sought funding about matters of principle, on behalf of other people whom they do not know, or with regard to decisions to which they have no direct connection or involvement. It is our view that it is not appropriate for purely representative actions to receive limited legal aid funds. Our proposal is to amend section 7 of the Funding Code to tighten the tests for both investigative help and legal representation in judicial review so that funding can only be granted to an individual who will gain a personal benefit from the outcome of the proceedings, either for themselves or their family.”
“This is an issue of particular concern for environmental cases and for the UK’s compliance with its Aarhus obligations. FOE’s view is that it is unclear how this proposal would actually alter the current position under the Funding Code, which already refers to the benefits to an individual client, but that there is a significant risk in adopting a more restrictive personal benefit test in terms of compliance with the Aarhus Convention... Our concern is that such an approach would fail to recognise that in environmental judicial reviews the interests sought to be protected are diverse such that they affect a wider number of people in the community and not just the person bringing the claim... any changes in this direction should specifically address (perhaps by way of a ‘carve out’) the Aarhus issues.”
“A discretionary decision is not in any event vitiated by a failure to take into account a consideration which the decision-maker is not obliged by the law or the facts to take into account, even if he may properly do so: CREEDNZ Inc v Governor General[1981] 1 NZLR 172 , 183.”
“... [T]he Ministry of Defence has been faced with a series of judicial review applications arising out of the intervention in Iraq. In most of these cases the consequences of an adverse judgment could be extremely serious for our defence, security, and foreign policy interests... ... 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... 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...”
“[c]onsideration of this point [sc. the MoD’s concerns] formed part of the wider consideration of access to legal aid to support judicial review cases, under the more general rubric of looking at what it was desirable to fund from finite resources”