Graeme Donaldson For Judicial Review Of A Decision Of The Scottish Legal Aid Board
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Neutral Citation | [2012] CSOH 176 |
| Year | 2012 |
| Published date | 20 November 2012 |
| Date | 20 November 2012 |
| Court | Court of Session |
| Docket Number | P688/12 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 176 | |
| P688/12 | OPINION OF LORD DRUMMOND YOUNG in petition of GRAEME DONALDSON Petitioner: for Judicial Review of a decision of the Scottish Legal Aid Board to refuse an application made in terms of Section 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 ________________ |
Petitioner: Pirie; Balfour & Manson LLP
Respondent: (Scottish Legal Aid Board): S Wolffe, QC; Scottish Legal Aid Board
20 November 2012
[1] The question that arises in the present proceedings for judicial review is the meaning of the expression "Scots law" in the legislation governing legal aid, and in particular section 6(1) of the Legal Aid (Scotland) Act 1986. Under section 6(1), advice and assistance is available to a client of a solicitor "on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking advice". The petitioner is a prisoner in HM Prison, Shotts. He wishes to take advice from a solicitor in connection with a possible application to the European Court of Human Rights to challenge his exclusion from the franchise under United Kingdom legislation. The petitioner, through his solicitor, applied to the Scottish Legal Aid Board, the respondents in the petition, to have such advice treated as a distinct matter in terms of section 8B(3) of the Advice and Assistance (Scotland) Regulations 1996. If such an application were granted, the result would be that the solicitor was entitled to payment from the respondents of a fee at a significantly higher rate than would otherwise be available. On 22 October 2010 the respondents refused the application on the ground that an application to the European Court of Human Rights is not a matter of Scots law. That decision was confirmed on 5 November 2010. The petitioner has raised the present proceedings in order to challenge that refusal.
[2] After the respondents' refusal of the application was confirmed, the petitioner applied for legal aid for judicial review of the decision. Following sundry correspondence and an application to the sheriff, such legal aid was granted. Thereafter, on 17 May 2012, the respondents wrote to the petitioners' solicitor indicating that they had decided to grant the application, thus reversing the earlier decision. The result is that the present application is now academic. Generally speaking the court will only hear cases that have practical consequences for the parties: Macnaughton v Macnaughton's Trs, 1953 SC 387. Nevertheless, where an issue arises in the field of public law or involving a public authority, the court has a discretion to hear cases that are academic provided that there is a good reason in the public interest for doing so: Napier v Scottish Ministers, 2005 SC 307; Axa General Insurance Ltd v Lord Advocate, [2011] 3WLR 871. I was informed that the question raised in the present proceedings is likely to arise in a large number of other cases and will probably have to be resolved in the near future. It appeared to me that the question of construction that arises in these proceedings is one of general importance, and is likely to arise in other cases. These need not be confined to prisoners' voting rights; any case where legal advice and assistance is sought with a view to raising proceedings in the European Court of Human Rights may well raise the same issue. For that reason I decided that I should hear the parties' arguments on the meaning of "Scots law" in the legal aid legislation. A number of other issues were potentially raised by the petition, but I consider that these did not have sufficient general importance to hear them at this stage. This opinion is accordingly confined to the question of the meaning of the expression "Scots law" as used in the legislation governing legal aid.
The legal aid legislation and guidance
[3] Section 6(1) of the Legal Aid (Scotland) Act 1986 defines the expression "advice and assistance" for the purposes of the Act. In its present form it provides as follows:
"In this Act -
'advice and assistance' means any of the following -
(a) oral or written advice provided to a person by a solicitor (or, where appropriate, by counsel) -
(i) on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice;
(ii) as to any steps which that person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings,... or otherwise) having regard to the application of Scots law to those circumstances;
(b) assistance provided to a person by a solicitor (or, where appropriate, by counsel) in taking any steps mentioned in paragraph (a)(ii) above, by taking such steps on his behalf or by assisting him in so taking them...".
Thus, under paragraph (a), advice is confined to the application of Scots law or to steps that might be taken having regard to the application of Scots law. Under paragraph (b), assistance is confined to steps mentioned in paragraph (a)(ii); thus assistance to is confined in a similar manner. Further provisions of the Act specify the financial conditions that must be met for a person to qualify for legally aided advice and assistance. For present purposes, however, the critical feature of section 6(1) is that advice and assistance is confined to the application of Scots law.
[4] Further features of the legal aid legislation are material for present purposes. The detailed conditions for the availability of advice and assistance are found in the Advice and Assistance Regulations 1996 (SI 1996 No 2447 (S 192)). The 1996 Regulations distinguish "diagnostic interviews" and advice given in respect of "distinct matters", the latter often being known as standard advice and assistance. Regulation 2(1) contains a definition of "diagnostic interview"; this is defined as a meeting or meetings between a solicitor and client and any work that reasonably and necessarily follows on from such a meeting which relates to a matter or matters which are not "distinct". The expression "distinct matter" is defined in regulation 8A. Under regulation 8A(1), the solicitor is to determine whether or not the advice and assistance relates to a distinct matter. Regulation 8A(2) provides that an application for advice and assistance relates to a distinct matter "if the subject matter of the application is determined by the Board, in accordance with guidance issued by it, to be treated as distinct", the Board being the respondents. Regulation 8B(1) provides that, where the subject matter in which the advice and assistance relates is not distinct, the solicitor is to give advice and assistance to the client by way of a diagnostic interview. Under regulation 8B(3) and (4), however, if the solicitor provides advice and assistance by way of diagnostic interview but considers that the subject matter, although not distinct, should be treated as if it were so, he may apply to the Board for the subject matter to be so treated, and in that event the Board have power to determine or reject the application. For practical purposes the important difference between a diagnostic interview and advice on a distinct matter is that the limit on authorized expenditure for diagnostic advice and assistance is £35, whereas the limit on authorized expenditure for a distinct matter, standard advice and assistance, is £95 or £180, with the possibility of authorization for a still greater sum.
[5] The guidance issued by the respondents for the purposes of the foregoing provisions is contained in Chapter 1 of Part III of their Civil Legal Assistance Handbook. This contains a number of provisions that are of relevance to an understanding of the facts of the present case, in that they set out the background against which the respondents operate. The provisions of the Handbook, however, are obviously not in any way binding as a matter of law; they merely set out the respondents' practice, although they are in my view consistent with the law as set out below. Paragraph 1.3 indicates what advice and assistance covers, and states that the solicitor cannot give advice and assistance on a matter that does not include the application of Scots law. This is said to exclude foreign law, including matters of English or Northern Irish law, and work in connection with applications to, and proceedings before, the European Court of Human Rights. In relation to foreign law, however, paragraph 1.4 indicates that a solicitor may give a diagnostic interview to advise on the application of Scots law to a particular situation even if the advice is that Scots law affords no remedy and that the matter must be pursued in another jurisdiction. That advice, it is indicated, would extend to putting the client in touch with a solicitor in the foreign jurisdiction. Thus it is contemplated that a diagnostic interview will suffice for advice in accordance with the Scottish rules on private international law that Scots law does not apply and that any remedy must be pursued in another jurisdiction. Paragraph 1.9 sets out categories of advice that are diagnostic matters; these include matters relating to the European Court of Human Rights. Paragraph 1.18 provides a list of matters where standard advice and assistance is approved; these obviously do not include applications to the European Court of Human Rights.
The facts of the case
[6] In October 2010 the petitioner was detained in prison. He was excluded from the franchise by section 3 (1) of the Representation of the People Act 1983. The European Court of Human Rights has held that that provision, which excludes all serving prisoners from voting in elections in the United Kingdom, is incompatible with article 3 of the First Protocol to the European Convention on Human Rights: Hirst v United Kingdom (No...
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...No point is taken here as to what might be the ambit of the expression "Scots law" (cf Donaldson v Scottish Legal Aid Board [2012] CSOH 176). [8] Section 10 (3) of the Act provides a financial limit for the cost of advice and assistance. An increase in that limit may be authorised. In terms......
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