Scottish Court of Session Decisions

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 2), (2006) 42 EHRR 41; Smith v Scott, 2007 SC 345. Because the exclusion from the franchise arises by virtue of United Kingdom legislation, no remedy is available in the Scottish courts for that incompatibility. On 11 October 2010 the petitioner applied to his solicitor for advice and assistance in connection with challenging his exclusion from the franchise in the European Court of Human Rights. His solicitor granted the petitioner's application, as he was entitled to do under Part II of the Legal Aid (Scotland) Act 1986. He decided, however, that his ability to provide advice and assistance was limited to providing diagnostic advice and assistance. As mentioned above, this had the effect of limiting the authorized expenditure to £35. On 22 October 2010, therefore, the petitioner's solicitor applied to the respondents under regulation 8B(3) of the 1996 Regulations for authorization to transfer the petitioner's advice and assistance from the diagnostic category to the category of standard advice and assistance, which would have the effect of increasing authorized expenditure to a limit of either £95 or £180, with the possibility of authorization for still greater expenditure in appropriate cases.

[7] The respondents refused the application on the same date on the ground that an application to the European Court of Human Rights is not a matter of Scots Law. The refusal document stated

"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 the 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 causes brought before the court essentially consider supranational ECHR jurisprudence as opposed to specific issues of Scots law".

Reference was made to the Privy Council decision in Tangiora v Wellington District Legal Services Commission, [2000] 1 WLR 240, where it was held that the relevant authority in New Zealand could not be compelled to make legal aid available for proceedings before the United Nations Human Rights Committee.

[8] On 27 October 2010 the petitioner's solicitor applied to the respondents for a review of their refusal of the application. That request was refused. The refusal letter stated that the European Court of Human Rights has its own system of legal aid, and the proposed remedy was quite clearly in a court for which Scottish legal aid was not available. Sundry procedure then followed with the effect, referred to in paragraph [2] above, that the respondents' decision was reversed. The respondents nevertheless take the view, and they advanced it in argument in the present proceedings, that their original position on the meaning of the expression "Scots law" was correct, and that advice and assistance does not require to be granted in respect of a possible application to the European Court of Human Rights.

Prisoners' voting rights

[9] The petitioner has applied for legal aid in order to challenge his exclusion from the franchise. A number of cases raising that issue had been raised before the European Court of Human Rights. In Hirst v United Kingdom (No 2), No 74025/01, ECHR 2005-IX, the Grand Chamber of the Court held that the exclusion of prisoners' voting rights effected by section 3 of the Representation of the People Act 1983 was incompatible with article 3 of Protocol No 1 to the Convention; article 3 obliges the signatories to the Convention, including the United Kingdom, to hold free elections at reasonable intervals under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. That decision was issued in October 2005. Thereafter the United Kingdom government failed to take steps to have the Representation of the People Act amended by Parliament to take account of the Strasbourg decision. Concern about their inactivity was expressed by the Committee of Ministers of the Council of Europe in December 2009. The position changed in 2010, when the government indicated that it was actively considering how to implement the decision in Hirst and intended to bring forward legislative proposals. Nevertheless, nothing has been done to confer a right to vote on any serving prisoners. Following the decision in Hirst, legal proceedings were raised in the courts of Scotland, England and Wales and Northern Ireland to challenge the exclusion from the franchise. These were all unsuccessful, essentially on the ground that the Representation of the People Act 1983 was an Act of Parliament and was clear in its terms. Consequently any steps to give effect to the decision in Hirst were a matter for Parliament.

[10] Meanwhile, proceedings were raised in the European Court of Human Rights by a substantial number of serving prisoners. Of these, the case which was considered by the Court was Greens and MT v United Kingdom, (App 6004 1/08) (23 November 2010). That was an application by two Scottish prisoners who alleged that their rights under article 3 of Protocol No 1 and article 13 of the Convention had been violated. Article 13 provides that everyone whose rights and freedoms as set forth in the Convention are violated should have an effective remedy before a national authority. In the operative part of its judgment, the Court held (point 6(a)) that the United Kingdom must, within six months of the date of the judgment, bring forward legislative proposals to amend the Representation of the People Act in a manner which was Convention-compliant. In addition, however, the Court reviewed the history of developments since Hirst, and noted (paragraph 116) that, given the findings in Hirst and in the present judgment, it was clear that every comparable case pending before the Court would give rise to a violation of article 3 of Protocol No 1. The failure of the United Kingdom to implement the earlier decision meant that there was likely to be a wave of new applications to the Court from serving prisoners challenging their position in the Scottish elections to be held in May 2011. The question thus arose as to how to dispose of the numerous cases already lodged with the Court and potential future applications. The judgment concluded:

"120. [T]he Court was of the view that the continued examination of every application asserting a violation of Article 3 of Protocol No 1 as a result of the current blanket ban on voting applicable to serving prisoners is no longer justified.... The Court emphasises that it has clearly established, both in the present judgment and in its judgment in Hirst, that the prevailing situation has given rise and continues to give rise to a violation of Article 3 of Protocol No 1 in respect of every prisoner who is unable to vote in an election to the legislature and whose ineligibility arises solely by virtue of his status of prisoner. It has further declined to award non-pecuniary damages in respect of this violation....

121. The Court accordingly considers it appropriate to discontinue its examination of applications registered prior to the date of delivery of this judgment and raising complaints similar to those in the case of Hirst pending compliance by the respondent State with... the operative part of this judgment....

122. The Court similarly considers it appropriate to suspend the treatment of any application is not yet registered at the date of delivery of this judgment, as well as future applications, raising such complaints, without prejudice to any decision to recommence the treatment of these cases in the event of any non-compliance [by the United Kingdom] with the terms of point 6(a) of the operative part of this judgment...".

The result of this decision is that any application of the sort contemplated by the present petitioner will not be considered by the Strasbourg Court, at least initially, and proceedings will be suspended. Nevertheless, if the United Kingdom maintains a comprehensive ban on prisoners' voting rights, it is possible that cases of this nature will be revived, and some sort of remedy may be pronounced.

Legal analysis

[11] I now propose to consider the legal issues that arise in the present application. These are conveniently divided into two issues: the status of the Convention and the Strasbourg Court in Scots law, and the construction of the expression "Scots law" as used in section 6(1) of the Legal Aid (Scotland) Act 1986.

The status of the European Convention on Human Rights and the European Court of Human Rights in Scots law

[12] Scots law, in keeping with the other legal systems of the United Kingdom, has adopted a dualist analysis of the relationship between international treaties and domestic law; that is to say, international treaties have effect in international law and are binding on the signatory states, but they have no direct effect in the domestic law of those states. If the provisions of a treaty are to have effect as a matter of domestic law, it is essential that they should be incorporated into domestic law by means of an Act of Parliament. The European Convention on Human Rights is an international treaty, and is accordingly binding on the signatory states, including the United Kingdom. It has no direct effect in domestic law, however. Likewise, decisions of the European Court of Human Rights are binding on the United Kingdom as a signatory to the Convention and member of the Council of Europe, but they have no direct effect in Scots law. Substantial parts of the Convention have been incorporated into domestic law by the Human Rights Act 1998 and the Scotland Act 1998, but those provisions of the Convention only have effect as a matter of domestic Scots law by virtue of those statutes. The legal position has been summarized in an English case, R v Lyons, [2002] UKHL 447; [2003] 1 AC 976, in the following terms (per Lord Hoffmann at paragraphs 26-28):

"26. What, then, is the effect of the [European Court of Human Rights'] rulings upon the question of whether the appellants' convictions are safe [the test in England and Wales for whether a criminal appeal should succeed]? The Convention is an international treaty made between member states of the Council of Europe, by which the High Contracting Parties undertake to 'secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention'. Article 19 sets up the [European Court of Human Rights] 'to ensure the observance of the engagements undertaken by the High Contracting Parties'. It has jurisdiction under article 32 to decide 'all matters concerning the interpretation and application of the Convention'. And by article 46 the high contracting parties undertake ''to abide by the final judgment of the court in any case to which they are parties'.

27. In other words, the Convention is an international treaty and the [European Court of Human Rights] is an international court with jurisdiction under international law to interpret and apply it. But the question of whether the appellants' convictions were unsafe is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them.... Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney General v Guardian Newspapers Ltd (No 2), [1990] 1 AC 109, 283: 'I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention]'.

28. But for present purposes the important words are 'when I am free to do so.' The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crowd in breach of an international treaty or not".

A similar approach is found in In re McKerr, [2004] UKHL 12; [2004] 1WLR 807, in the speeches of Lord Nicholls at paragraph 25 and Lord Hoffmann at paragraphs 62 and 63, and in Scotland in Whaley v Lord Advocate, 2004 SC 78, at paragraph [39] per Lord Brodie, Friend v Lord Advocate, 2006 SC 121, at paragraph [26] (the same case), and Whaley v Lord Advocate, 2008 SC (HL) 107, at paragraph [8] per Lord Hope. It follows that neither the Convention nor the decisions of the European Court of Human Rights form part of Scots law. This is not affected by the enactment of the Human Rights Act 1998 and the Scotland Act 1998; so far as Scots is concerned, it is those statutes and not the Convention that form part of the domestic law.

[13] The foregoing analysis is further supported by the scheme of the Convention itself. Under the Convention, article 1 provides that it is binding on the high contracting parties, which reflects the normal status of international treaties. Article 13 provides that everyone whose rights and freedoms as set forth in the Convention are violated should have an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity. That is, however, a provision that binds the United Kingdom only at an international level; article 13 has not been incorporated into the Human Rights Act. The European Court of Human Rights is created by article 19, and its jurisdiction is set out in article 32. The latter article provides that the Court is to adjudicate on the Convention; that is a clear indication that its function is to adjudicate on the application of an international treaty as between the high contracting parties, the states that are parties to that treaty. It has no jurisdiction as to any matter arising under the domestic law of any of those states. Article 34 confers a right of individual petition to the Court. All that this means, however, is that the United Kingdom and other states that accept that article acknowledge that they will submit to the jurisdiction of the Court in applications by individuals and other legal persons. This is plainly quite different from a remedy under domestic law. Article 46 makes provision for the effect of decisions by the Court; under that article the high contracting parties undertake to abide by the final judgment of the Court. That makes clear that the binding effect of decisions of the Court is confined to the states that have acceded to the Convention, by virtue of their undertaking to be bound by the Convention as a whole and article 46 in particular. That obligation is not in any way binding as a matter of domestic Scots law; it forms part of the obligations of the United Kingdom and other high contracting parties under international law.

Construction of section 6(1) of the Legal Aid (Scotland) Act 1986

[14] The critical issue in the present case is the meaning of the expression "Scots law" as used in the legal aid legislation, and in particular in section 6(1) of the Legal Aid (Scotland) Act 1986. The terms of section 6 are quoted above at paragraph [2]. The primary contention for the petitioner was that advice and assistance on making an application to the European Court of Human Rights was advice on the application of Scots law, as a matter of statutory construction; reliance was placed on the ordinary meaning of that expression. Moreover, it was said that the Convention had effect in Scotland and was therefore part of Scots law. It was further contended that in any event such advice would be as to any steps that a person might appropriately take having regard to the application of Scots law to the circumstances. In my opinion these contentions are not well founded.

[15] In the first place, the 1986 Act must be construed as an expression of the intention of Parliament. In determining that intention, it is appropriate to have regard not merely to the language that is used but to the overall scheme of the Act and the purpose that the Act is designed to achieve. Of importance in this connection is the understanding that Parliament had of the relationship between the European Convention on Human Rights and domestic law. This understanding is quite clearly in accordance with the dualist analysis set out previously, under which international law, including the Convention, and domestic Scots law are treated as entirely separate systems. That is apparent from the terms of the Human Rights Act 1998 and the Scotland Act 1998. In both of these statutes the technique that is used is to incorporate certain provisions of the Convention directly into the terms of the Act. That appears in Schedule 1 to the Human Rights Act, where the terms of the Convention that apply are set out in full. In the Scotland Act a member of the Scottish Executive has no power to do any act or to act incompatibly with any of the Convention rights: section 57(2). The expression "the Convention rights" is defined in section 126(1) as having the same meaning as in the Human Rights Act 1998. Thus under both Acts it is assumed that the provisions of the Convention, and indeed any other international treaty, will have no effect as a matter of Scots Law unless they are expressly incorporated into the terms of an Act of Parliament. That is, moreover, in accordance with fundamental constitutional principle. The legislative function is that of Parliament. Treaties, by contrast, are concluded by the executive. If they had direct effect as a matter of any of the domestic legal systems of the United Kingdom, that would undermine one of the most important principles that emerged from the constitutional struggles of the 17th century.

[16] In the second place, it is also important to have regard to the overall scheme of the 1986 Act. The Act is designed to provide a system of legal aid and assistance for use in Scotland. That appears from the long title, which states that the Act is to repeal and re-enact with modifications "certain enactments relating to legal aid and to advice and assistance in Scotland". The Act establishes the fund known as the Scottish Legal Aid Fund (section 4), and under section 1(2) the respondents are given the general function of administering the Fund. Overall, the general scheme of the provisions of the Act is to provide advice and assistance for Scotland only, and the reference to Scots law is an important part of that restriction. Scots law includes rules of private international law that refer to the law of other jurisdictions. For example, if a Scot is injured in a road accident in England, he may go to a Scottish solicitor for advice, and would obtain legal assistance for a diagnostic interview. In such a case, however, the solicitor's function would be to indicate that the accident was governed by English law, not Scots law, and would direct his client to an English lawyer. That is a fairly straightforward piece of advice, and it is easy to see why it would be covered by a diagnostic interview. Likewise, Scots law has a rule, discussed in paragraph [12] above, that international treaties have no direct effect in domestic law. Thus if a solicitor's client seeks to found on an international treaty such as the Convention, the advice required would be very straightforward, namely that as a matter of Scots Law he cannot do so. In both of these cases the merits of the claim in England or in the Strasbourg Court are not part of Scots law; the application of Scots law is confined to identifying this rule and advising that in consequence the client must look for advice elsewhere.

[17] Counsel for the petitioner placed reliance on certain features of the Convention that, he said, made it "Scots law" within the ordinary meaning of that phrase. First, he pointed out that the Convention applies to acts and omissions of the state authorities of the United Kingdom committed within Scotland. Secondly, he referred to the individual right to petition the European Court of Human Rights that exists under article 44 of the Convention. Thirdly, he relied on the fact that that the Strasbourg Court can grant a remedy to an applicant under article 44. Fourthly, he pointed out that a decision of the Court in favour of an applicant will bind the United Kingdom state. These points are no doubt correct as far as they go, but it is important to recognize that they arise by virtue of international law, not domestic law; the United Kingdom is bound merely as a signatory to the Convention. The binding nature of the Convention, the right of individual petition, the Court's ability to grant a remedy and the binding nature of such a remedy all arise as a matter of international law, not as a matter of domestic law.

[18] The petitioner further placed some reliance on the debate in the House of Lords on the Bill that subsequently became the Legal Aid (Scotland) Act 1986. In Hansard for 6 March 1986, columns 352-354, it is recorded that discussion took place on an amendment to leave out the word "Scots" from the clause corresponding to the present section 6(1). The point made by Lord Morton of Shuna, who moved the amendment, was that advice should be available on the application of law in a situation where, for example, someone moved from Scotland to England in circumstances where matrimonial advice or contractual advice was required in respect of English law. The amendment was ultimately rejected. In the debate the Lord Advocate, Lord Cameron of Lochbroom, stated that the existing system worked satisfactorily and that it was difficult to see how a Scottish solicitor could give satisfactory advice on foreign law. Counsel for the petitioner suggested that this meant that the reason for confining the legal aid legislation to advice on Scots law was that a Scottish solicitor was not qualified to give advice on foreign law. That did not, however, apply to advice about the European Convention on Human Rights, because a Scottish solicitor was qualified to give such advice. While the latter point is no doubt correct so far as it goes, I am of opinion that the debate reveals that the reason for rejecting the amendment was more fundamental, namely that the existing system worked in a satisfactory manner. In any event, the fact that a Scottish solicitor is qualified to give advice on the Convention and to appear in the European Court of Human Rights does not in my view alter the fundamental meaning of the expression "Scots law". I am accordingly of opinion that there is no merit in this line of argument.

[19] The result is that the petitioner and others in a like position will not be able to obtain Scottish legal advice and assistance in connection with possible proceedings before the European Court of Human Rights beyond a diagnostic interview. This should not cause great hardship, however, for four reasons. First, the procedures for making an application to the Court are very straightforward, and assistance is provided by court officials. I was referred to a document, European Court of Human Rights: Questions and Answers, published by the Registry of the Court. This explains in very simple terms how to make an application to the Court. A letter to the Court giving clear details of the complaint will suffice; as will filling out an application form. The Registry may ask for additional documents, information or explanations. The questions and answers document indicates that at that stage an applicant need not be represented by a lawyer. Secondly, the Registry of the Court provides assistance in preparing and developing applications; I was referred to three recent examples where it was evident that a clear statement of the applicant's case had been prepared with assistance from the Registry. Thirdly, after the initial application has been made, legal aid is available from the Court. Fourthly, an applicant only requires to bear his or her own costs and expenses. In these circumstances it does not appear to me that there is any pressing practical need for the Scottish system of legal advice and assistance to extend to applications to Strasbourg.

Conclusion

[20] In all the circumstances, therefore, I am of opinion that the expression "Scots law" as used in section 6(1) of the 1996 Act does not extend to the giving of advice as to the making of an application to the European Court of Human Rights. Consequently the respondents' refusal to treat the advice given to the petitioner as a distinct matter for the purposes of the Legal Aid (Scotland) Act 1986 and the Advice and Assistance (Scotland) Regulations 1996 was correct. That is determinative of the issues raised in the present petition. I will accordingly uphold the fourth plea in law for the respondents and refuse the prayer of the petition.