Graeme Donaldson V. Scottish Legal Aid Board In Petition For Judicial Review Of A Decision Of The Scottish Legal Aid Board
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lady Paton,Lord McGhie |
| Judgment Date | 28 March 2014 |
| Neutral Citation | [2014] CSIH 31 |
| Docket Number | P688/12 |
| Published date | 28 March 2014 |
| Court | Court of Session |
| Date | 28 March 2014 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 31 | |
| Lady Paton Lord Brodie Lord McGhie | P688/12 OPINION OF THE COURT delivered by LADY PATON in the reclaiming motion by GRAEME DONALDSON Petitioner and Reclaimer; against SCOTTISH LEGAL AID BOARD Respondents: in petition for Judicial review of a decision of the Scottish Legal Aid Board on 22 October and 5 November 2010 to refuse an application made in terms of regulation 8B(3) of the Advice and Assistance (Scotland) Regulations 1996 to treat the subject matter of advice and assistance provided by his solicitor as if it were a distinct matter _______________ |
Act: A O'Neill QC, Pirie; Balfour & Manson LLP (for Taylor & Kelly, Coatbridge)
Alt: S Wolffe QC, Byrne; Solicitor, Scottish Legal Aid Board
28 March 2014
Introduction
[1] The petitioner contends that he should be granted Scottish legal advice and assistance to help him commence proceedings in the European Court of Human Rights in Strasbourg. If he were correct in his contention, he would be entitled not only to a diagnostic interview with his lawyer but also to the more extensive legal advice and assistance available as a consequence of the subject matter of his application being treated as a "distinct matter" (cf paragraphs [4] and [5] of the opinion of Lord Drummond Young dated 20 November 2012).
Background
[2] The petitioner's application for legal advice and assistance arose as a result of his quest for voting rights while serving a prison sentence. The current position in the United Kingdom is that serving prisoners are not eligible for registration in the register of electors (section 3(1) of the Representation of the People Act 1983 - often referred to as the "blanket ban"). The petitioner sought legal advice. His lawyer approved his application for legal advice and assistance to the extent of a diagnostic interview, defined in regulation 2(1) of the Advice and Assistance (Scotland) Regulations 1996 as meaning -
" ... a meeting or meetings between a solicitor and a client ... and any work reasonably and necessarily following on from any such meeting to include any further work which for the purpose of the provision of advice and assistance relates to a matter, or a range of matters, which are not distinct;"
The petitioner's lawyer advised him about the current situation in the United Kingdom, and also confirmed that he could apply to the European Court of Human Rights in Strasbourg for just satisfaction under article 41 of the European Convention on Human Rights, founding upon that court's decision in Hirst v UK (No 2) (App 74025/01) (2006) 42 EHRR 41, 19 BHRC 546. Article 41 provides:
"If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party."
The petitioner wished to adopt that course of action.
[3] In order to help the petitioner commence proceedings in Strasbourg, his lawyer requested further funding - in other words, requested the Scottish Legal Aid Board (SLAB) to treat the process of applying to the Strasbourg court as a "distinct matter" in terms of regulation 8B(3) of the 1996 Regulations. In particular, by letter to SLAB dated 22 October 2010, the petitioner's solicitor explained:
"We ... write to seek authorisation to transfer the grant of [the petitioner's] diagnostic advice and assistance to standard advice and assistance ... [The petitioner] wants advice and assistance in connection with making application to the European Court of Human Rights in connection with his exclusion from the franchise. He is a prisoner ... We would contend that in the particular circumstances of [the petitioner's] grant the application of Scots law to his particular circumstances includes the invoking of the only remedy available namely an application to the European Court of Human Rights ... What [the petitioner] seeks is just satisfaction damages. That can be granted by the Strasbourg court. In those circumstances the application of Scots law to his particular circumstances includes seeking that remedy before that court. The European Court of Human Rights, although based in Strasbourg, is not a foreign court. The remedy afforded by that court has direct application to [the petitioner] in that the wrong which he says he is the victim of, namely exclusion by operation of a statutory blanket ban, can only be corrected by the court pronouncing a declarator in respect of this matter ..."
[4] By decision of 22 October 2010 SLAB responded inter alia:
"It is the Board's view that an application to the European Court of Human Rights is not a matter of Scots law. The European Court of Human Rights is not a court of appeal from domestic courts and it cannot alter or annul any decisions taken by those courts. Essentially the European Court of Human Rights is a supranational organisation, the jurisdiction of which is accepted by signatory states to the European Convention on Human Rights. The European Court of Human Rights does not concern itself with Scots law per se but instead considers whether signatory states are complying with their Convention obligations under reference to relevant ECHR jurisprudence. Any cases brought before the court essentially consider supranational ECHR jurisprudence as opposed to specific issues of Scots law ..."
[5] By a further application dated 27 October 2010, the petitioner's solicitor requested the board to reconsider, pointing out inter alia that:
"... if [the petitioner] takes his complaint to the European Court of Human Rights, it can hold the UK to be in breach and award [the petitioner] just satisfaction damages. It is, in a real sense, able to provide redress in respect of a finding of a breach of the particular Convention right. The remedy which the law of Scotland affords to him in this area is this application to this court ..."
[6] By a further decision of 5 November 2010, the board responded:
"The ECHR has its own system of legal aid. Whilst the subject matter of the application has its origins in the law of Scotland, the proposed remedy is quite clearly in a court for which Scottish Legal Aid is not available. Our previous refusal to grant an uplift is adhered to."
[7] On 22 December 2010 the petitioner applied for legal aid in order to judicially review the board's decision. Various procedures followed. On 17 May 2012, the board (without any concession about the petitioner's entitlement thereto) granted the petitioner the legal advice and assistance which he sought to help him commence proceedings in the European Court of Human Rights, as they took the view that a judicial review would be disproportionately costly compared with the outlay required for advice and assistance. Their grant was not, however, taken up. On 28 May 2012 the petitioner was granted legal aid for the judicial review proceedings. In mid-2012, the petitioner raised the current judicial review in the Court of Session, seeking inter alia declarator that SLAB's decision on 22 October and 5 November 2010 was unlawful. The judicial review might be thought to have become of academic interest as between the parties. Nevertheless senior counsel for both the petitioner and the respondents maintained that it was necessary to seek the court's ruling: see statements 15 to 19 in the petition, and answers thereto, at pages 24-29 of the reclaiming print; see also the Lord Ordinary's observations in paragraph [2] of his opinion.
[8] A first hearing took place on 12 October 2012 before Lord Drummond Young. The debate focused on what was known as "the powers argument", ie whether or not SLAB had the power, in terms of section 6 of the Legal Aid (Scotland) Act 1986 and the 1996 Regulations, to grant the petitioner's request to treat the process of applying to the Strasbourg court as a "distinct matter" and thus to grant standard legal advice and assistance (statement 20 of the petition and the petitioner's first plea-in-law). Certain other arguments (statements 22 and 23, statement 21 not being insisted on) remain to be debated on another day.
[9] Having heard submissions, the Lord Ordinary concluded inter alia that the expression "Scots law" as contained in section 6(1) of the Legal Aid (Scotland) Act 1986 did not extend to commencing proceedings in the European Court of Human Rights. He dismissed the petition. The petitioner reclaimed.
[10] In relation to the scope of this reclaiming motion, we gratefully adopt the guidance given by Lord Slynn in R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450 at page 457, when he stated:
"The [court's] discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
[11] It is our understanding that other disenfranchised serving prisoners may seek to follow the route adopted by the petitioner. For that reason, we are persuaded that the issue before us should be determined. That issue is whether a disenfranchised serving prisoner wishing to initiate proceedings in Strasbourg is entitled to legal advice and assistance for that purpose, over and above any funding granted for a diagnostic interview.
Relevant statutory provision
[12] Section 6 of the Legal Aid (Scotland) Act 1986 provides inter alia:
"(1) In this Act -
'advice and assistance' means any of the following -
(a) oral or written advice provided to a person by a...
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