Behind Closed Doors

3 December 2013
Behind Closed Doors

 By CHRIS JOHNSON

Community Law Partnership (CLP)

 

CLP put in a Freedom of Information Act request to the Ministry of Justice (MoJ) concerning the judicial review consultation (see In Defence of the Rule of Law). They responded on 5th November and here is that response (in bold): 

 

Thank you for your letter of 20 September in which you asked for the following information from the Ministry of Justice (MoJ):

           

  1. 1.      We refer to Annex B (Response to Consultation) in “Transforming Legal Aid: Next Steps”. At paragraph 137, you state that

 

“..However, a number of respondents welcomed the proposal and agreed that it was reasonable to expect providers to more carefully consider the merits of a judicial review case before issuing proceedings, and to withhold payment from cases which were no considered by the courts to be arguable”

 

Please confirm the number of Respondents who welcomed the proposal?

 

  1. 2.      We refer to Annex B (Response to Consultation) in “Transforming Legal Aid: Next Steps”. At paragraph 158, you state that

 

“ A number of respondents welcomed the proposal and agreed that it was reasonable to limit funding to cases with moderate to better prospects of success”.

 

Please confirm the number of Respondents who welcomed the proposal?

 

  1. 3.      Were Gypsies and Travellers discussed during the preparations for and writing of the consultation papers “Transforming Legal Aid” and “Judicial Review: Proposals for further reform?”

 

  1. 4.      If so, please provide all relevant documents including memoranda, minutes of meetings, e-mails, correspondence and reports;

 

  1. 5.      In the last 3 years, how many section 288 and 289 and Country Planning Act 1990 appeals have there been and in how many of those has the appellant been in receipt of legal aid?
  2. 6.      In those cases where the appellant in a section 288 or section 289 appeal has had legal aid, how many of those appellants have been Romani Gypsies or Irish Travellers?

 

  1. 7.      If that information is not available, how many of the cases have involved Gypsy site cases?

           

 

Your request has been handled under the Freedom of Information Act 2000 (FOIA).

 

I have responsibility for answering requests relating to Legal Aid. I can confirm that the department holds some of the information that you have asked for, and I am pleased to provide this to you.

 

In response to your questions 1 and 2, 303 respondents said yes to the proposal at Q5, and 332 respondents agreed and welcomed Q6 in the consultation Transforming Legal Aid: delivering a more credible and efficient system.

 

In relation to your request at 3, 4, 5, 6, 7, I can confirm that the MoJ holds some of the information within scope of your request. However, we are not obliged to provide information if it relates to the formulation of government policy (section 35(1)(a) of the FOIA).

 

We are currently in the process of implementing some of the Transforming Legal Aid reforms, as set out in the Government response entitled Transforming Legal Aid: Next Steps. Whilst Ministers have made final decisions on some areas of legal aid reform, we are consulting further on a proposal to restrict legal aid to providers in judicial review cases. This proposal is set out in the consultation paper Judicial Review: Proposals for further reform. In that consultation paper we are additionally seeking views on whether legal aid should continue to be available for challenges to the Secretary of State’s planning decisions under sections 288 and 289 of the Town and Country Planning Act 1990 (TCPA) (other than where the failure to fund such a challenge would result in a breach or risk of a breach of the legal aid applicant’s ECHR or EU rights). Work to develop policy in respect of these two proposals will continue up to, (and potentially beyond), the point we issue the Government response to that consultation, taking into account an analysis of the responses received.

 

You may wish to note that proposals and decisions contained in all three papers mentioned above (Transforming Legal Aid: delivering a more credible and efficient system, Transforming Legal Aid: Next Steps, and Judicial Review: Proposals for further reform) were drawn up taking into account our obligations under the Equality Act 2010.  As such we published equalities analyses alongside these papers.  In the analyses accompanying Transforming Legal Aid: delivering a more credible and efficient system and Transforming Legal Aid: Next Steps we recognised that the proposals in relation to judicial review permission work payments and the civil merits test may result in a particular disadvantage to persons who share protected characteristics. However, we believe the proposals to be a proportionate means of achieving the aims of bearing down on the costs of the legal aid scheme and ensuring the legal aid system commands public confidence.  

 

Chapter 9 of the consultation paper Judicial Review: Proposals for further reform,(para 203 to 212, page 52-54) sets out the Government’s initial view of the equality impacts of the proposals in that consultation paper and invites further views on those impacts in accordance with our obligations under the Equality Act 2010.

 

Therefore, the information you have requested relates to the ongoing development of live government policy which is still not finalised and is in the process of being implemented or consulted on further and therefore is exempt from disclosure by virtue of section 35(1)(a) of FOIA.

 

In line with the terms of this exemption, we have considered whether it would be in the public interest to disclose the information to you at this stage. As the information in scope of the request relates to the policy formulation of aspects of both the Transforming Legal Aid and Judicial Review consultations, it is potentially exempt. The Department has reflected on the public interest in release of the information despite the exemption being applicable.  When assessing whether or not it was in the public interest to disclose this information to you at this time, we took into account the following factors:

 

Public interest considerations favouring disclosure

  • There is a public interest in increasing the transparency of the workings of Government. The proposals you have requested information on are undoubtedly of interest to many members of the public.  Disclosing information relating to the formulation of Government policy would help improve public understanding of the decision making process and increase public confidence that decisions are properly made.

Access to relevant recorded information about how policy decisions are reached, what options are being considered and why some are excluded and others preferred,

  • potentially generates meaningful participation between Government Departments and the public. The Government is currently consulting and further information might encourage greater participation or understanding with the public.
  • Allowing people access to information that will allow informed participation in the development of Government proposals or decisions which are of concern to them remains a key driver for FOI legislation, and in line with the Government’s commitment to transparency.
  • Information disclosed prior to a decision being taken may lead to a more informed public debate.

 

 

Public interest considerations favouring withholding the information

  • As set out above, policy in respect of proposals on judicial review permission payments and ss288-9 appeals under the TCPA remain under development and are still subject to public consultation. The Ministry of Justice will carefully consider responses before deciding how to proceed. We have set out our initial analyses of the impacts of these proposals alongside the consultation paper. While we are satisfied that the consultation document contains sufficient information to enable consultees to respond fully to our proposals, we are continuing to gather information as part of the policy development process. Release of any information that we currently hold could give only a partial and incomplete picture, which could be misleading or indeed detrimental to this policy formulation process.
  • In order to best develop policy and provide advice to Ministers, officials need a space in which free and frank discussion can take place. Sharing views internally within the Department and across Government is important to ensure that all relevant considerations are taken into account in developing and implementing policy. Release of the information at this stage would impair the Department’s ability to present its findings to the Ministers and might generate misinformed debate in areas where decisions have not been finalised. This would affect the ability of both Ministers and officials to consider and discuss all options, away from external pressures, and would prejudice the safe space for these discussions to happen effectively.
  • Given the importance of evidence-based policy making, disclosure at this stage of the information we currently hold could lead to less effective and well-developed policy. This could result in further costs to the Government and the taxpayer. As this policy remains live, it is important that the space required to take final policy decisions using the best evidence available is maintained.
  • Disclosure would leave civil servants at MoJ in the position of having to defend everything that has been raised during deliberation, whether proceeded with or not, and this would hinder their development of actual and effective policy proposals.

 

We reached the view that, on balance, the public interest is better served by withholding the requested information under Section 35(1)(a) of the Act at this time.

The answers to questions 1 and 2, in light of the fact that there were some 16,000 responses to the initial consultation, show just how few respondents had actually approved of those proposals despite the consultation paper making it sound like quite a lot had.

The failure to answer questions 5 to 7 is inexplicable. These were just requests for statistical information obviously designed to find out how many section 299 and 289 cases that received legal aid were cases involving Gypsies and Travellers. These questions were not related to policy formulation.

Whilst questions 3 and 4 did relate to policy formulation, information can still be released if it is ‘in the public interest’. Following the meeting with Lord McNally we now know that the planning bits of the consultation paper were promoted by the Department for Communities and Local Government (DCLG). The question is: did DCLG specifically target two ethnic groups (Romani Gypsies and Irish Travellers) when deciding to make the proposals about section 288 and 289 appeals? It is clearly in the public interest that this information is released. If the answer was: ‘We did not discuss Gypsies and Travellers’, then surely they would have told us that?

We have appealed the refusal to answer questions 3 to 7. Watch this space!

 

 

Chris Johnson (chrisjohnson@communitylawpartnership.co.uk)

21st  November 2013

Travellers Advice Team (TAT) at Community Law Partnership (CLP)

TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm