Ministry of Defence uses legal aid cuts to suppress torture cases

It has emerged that the Ministry of Defence in late 2009 convinced the Ministry of Justice to change the rules on legal aid to ensure that legal aid would no longer be available for public interest cases involving the acts of the armed forces abroad and the torture of Iraqi and Afghan nationals. The changes to the legal aid funding code meant that these cases would never reach the door of the court and the State would not be held accountable for its actions.

This interference by the Ministry of Defence with the workings of the justice system has been bought to light by peace activist Maya Evans in a successful High Court challenge to the legality of the changes to the funding code. Ms Evans was represented by Public Interest Lawyers. Read the full High Court judgment here.

The High Court struck down the changes to the funding code saying that the consultation process which led to the changes was flawed as the Ministry of Justice had not informed consultees of the real reasons for the change. The Court also made it clear that it was not open to the Government to manipulate the legal aid system to stop cases being bought against it:

“It needs no authority to conclude that by law such a position is not open to government. 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 therefore be frankly inimical to the rule of law.”

YLAL was one of the consultees affected by the flawed consultation. In our letter of evidence in support Ms Evans’ case we stated:

“Had there been any intimation that the aim of the proposals was to stop claims against the MoD arising out of Iraq and Afghanistan or relating to the practice of torture, we would have unequivocally opposed this. There is an overwhelming public interest in the accountability of the British government for the acts of the armed forces abroad. Equally the need for the state to be held to account for any complicity or involvement in torture is paramount. Where legal aid is necessary to make this possible it should always be available. Any change to the funding code which would have precluded such claims would, in our view, have been completely unjustifiable. If YLAL had known of the matters set out in your question we would certainly have spelt out our position in these terms.”

Read our full response here.

While the thrust of the judgment is welcome, disappointingly, in the long term it may make little difference to which cases are granted legal aid and the ability of the citizen to hold the State to account. The Court made it clear that while the Government must not refuse to fund public interest cases in order to avoid being held to account, it was acceptable to refuse funding for other “legally proper reasons” such as “the prioritisation of scarce public funds”.

Equally of concern was the Court’s rejection of the argument that legal aid should always be available for public interest cases which raise issues of torture, in order to fulfil the State’s obligations under international law. The Court stated that the obligation to prohibit and forestall torture does not require “the establishment of “access to justice” measures”. We regard this aspect of the judgement as disappointing. International obligations, such as the prohibition of torture, are meaningless unless they can be enforced by individuals and we consider that legal aid should always be available to individuals who lack the means to pay, in order to uphold these obligations.