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 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, making an agreement or other transaction, making a will or other instrument, obtaining further legal or other advice and assistance, 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 ..."

Submissions for the petitioner

[13] The essential points of the petitioner's argument, as articulated by senior counsel in written notes of argument and in oral submission, were as follows.

Section 6(1)(b): steps which could be taken

[14] Senior counsel for the petitioner submitted that section 6(1)(b) contained a test quite distinct from that in section 6(1)(a). Properly construed, section 6(1)(b) was engaged if, for example, "having regard to the application of Scots law", it was found that Scots law did not offer a remedy. In those circumstances, SLAB were empowered to finance any alternative steps which could then appropriately be taken. On that basis, it might be unnecessary to determine what comprised "Scots law". Once it had been ascertained (possibly at a diagnostic interview) that Scots law offered no remedy, the solicitor could, in terms of section 6(1)(b), give an individual assistance in taking alternative steps. He might, for example, contact a lawyer in the relevant jurisdiction, or help the individual to complete the application forms necessary for the European Court of Human Rights in Strasbourg. Thus the Lord Ordinary was wrong to conclude in paragraph [20] of his opinion that the expression "Scots law" as used in section 6(1) of the 1986 Act did not extend to the giving of advice as to the making of an application to the European Court of Human Rights. On the contrary, attention had to be given to the separate and distinct test under section 6(1)(b).

The proper construction of "Scots law" in section 6 of the 1986 Act

[15] In construing section 6, it was necessary to ascertain the intention of Parliament (Wilson v First County Trust (No 2) [2004] a AC 816). Six principles of statutory interpretation were relied upon, namely (1) historical context, including institutional writers' expositions concerning Scots law with principles from the ius naturale, ius gentium, fundamental rights, and public international law; (2) the ordinary meaning of the words, under reference to Bennion on Statutory Interpretation (5^th ed) and other authorities cited in the note of argument; (3) the mischief at which the statute was aimed; (4) compatibility with international obligations (T, petitioner 1997 SLT 724); (5) interpretation congruent with the requirements of EU law (article 4(3) of the Treaty on European Union and article 47 of the Charter of Fundamental Rights of the European Union; Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471); (6) the purpose of the legislation: in particular there was nothing in the 1986 Act suggesting that advice and assistance given in Scotland must be confined to the municipal law of Scotland in circumstances where the solution to the client's problem was to be found in the European Court of Human Rights.

The respondents' over-emphasis on the dualist analysis

[16] Senior counsel further submitted that the Lord Ordinary had erred in paragraphs [12] and [13] of his opinion by accepting the respondents' over-emphasis on the significance of the dualist analysis. Scots law did not simply comprise private law (contract, reparation, and so on), as classically understood. Scots law included human rights law, European law, international private law, customary international law. "Human rights law" included the Human Rights Act 1998, the European Convention on Human Rights, the Universal Declaration of Human Rights, treaties, conventions (concerning refugees, social and cultural rights, racial discrimination, discrimination against women, children's rights), and also the common law so far as shaped by human rights (cf Ahmed v HM Treasury [2010] 2 AC 534). Thus a solicitor consulted about a particular problem could advise that the only effective judicial remedy available was in the European Court in Strasbourg, and could assist the individual by providing the necessary application forms and helping the individual to complete them. Reference was made to the debate on the Legal Aid (Scotland) Bill in the House of Lords in Hansard volume 472 cols 353-354; The Relationship between International and Regional Human Rights Norms and Domestic Law, Prof R Higgins QC, (1992) 18 CLB 1268, at pages 1268, 1272; Lord Advocate's Reference no 1 of 2000 2001 JC 143, paragraphs [23], [102]-[105], [113] (where the dualist analysis was shown to be irrelevant if customary international law, or the jus gentium, also applied to the circumstances - and was not superseded by treaty law). The common law could be informed by treaty provisions, and develop to reflect those provisions. International law and Scots common law were in a mutual dialogue. Scots courts were guided by Strasbourg law, human rights treaties, and human rights decisions.

Article 34 of the European Convention on Human Rights

[17] The Scottish courts were under a duty not to hinder individuals in making applications to the European Court of Human Rights in Strasbourg. Article 34 of the European Convention on Human Rights provided:

"34 The Court may receive applications from any person ... claiming to be the victim of a violation ... of one of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

[18] That article was referred to in section 100 of the Scotland Act 1998, which provided:

"(1) This Act does not enable a person -

(a) to bring any proceedings in an court or tribunal on the ground that an act is incompatible with the Convention rights, or

(b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights."

Thus the authorities in Scotland were required to "furnish all necessary facilities to make possible a proper and effective examination of applications", particularly in the case of vulnerable and dependent applicants (Naydyon v Ukraine (App 16474/03) 14 October 2010, paragraphs 62-63). If a person - particularly a vulnerable or limited individual such as the applicant in SK v Paterson 2010 SC 186, or a prisoner with few resources - was unable to obtain advice because of a narrow construction of section 6 of the 1986 Act, that could result in a breach of article 34. Section 6 had to be construed in such a way as to ensure no breach of an international obligation. Thus even if the dualist analysis applied, a competent solicitor had to be able to give advice on those matters: cf Lewis v Attorney General of Jamaica [2001] 2 AC 50 - obligations arising although ratified treaties not incorporated in domestic law; Ahmed v HM Treasury [2010] 2 AC 534 - demonstrating the strength of the common law. The 1986 Act should be interpreted such that an individual had access to a solicitor.

Article 4(3) of the Treaty on European Union and article 47 of the Charter of Fundamental Rights of the European Union

[19] Furthermore European law was a distinct body of principles which had primacy over the laws of the member states. European law permeated Scots law. In terms of article 4(3) of the Treaty on European Union, national courts had a direct duty to fulfil the aims and objectives of the treaty. Framework Decisions, although not incorporated by statute into domestic law, were nevertheless relied upon in court (cf Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] 2 AC 471). European law was something about which a Scottish person might have to be advised. For example, a Scottish citizen might require advice and assistance about the direct enforceability in Scotland of a European Arrest Warrant (which, according to Lord Mance in Assange, was not part of UK domestic law: yet advice on the matter would be something the citizen was entitled to in terms of article 47 of the Charter of Fundamental Rights).

Summary and conclusion

[20] The whole purpose of section 6 (the "mischief" which was sought to be resolved) was to ensure that a Scots person received appropriate advice. If Scottish advice and assistance did not extend to assisting a person to have access to the appropriate court, he would be left without anyone to turn to. It was absurd to suggest that a solicitor could properly advise a person (for example, a prisoner seeking to vote) that there had been decisions in Scotland refusing prisoners the vote, judicially recognised as contrary to article 3 of the First Protocol of the Convention (Smith v Scott 2007 SC 345); that Parliament was refusing to act in accordance with Hirst v UK (No 2) (App No 74025/01) (2006) 42 EHRR 41; that there was no other remedy; that what had occurred was a breach of the prisoner's human rights, thus the only place to go for recognition of the breach and a remedy was the European Court of Human Rights in Strasbourg; but the solicitor would have to stop there without being able to assist by providing the necessary Strasbourg application forms and helping the prisoner to complete the forms in accordance with article 34 of the Convention. On the contrary, section 6(1)(a)(ii) of the 1986 Act, properly construed, permitted the solicitor to advise the prisoner about any steps which he might appropriately take "having regard to the application of Scots law" to his particular circumstances. While certain other arguments still required to be presented (statements 22 and 23 of the petition) the court should meantime recall the Lord Ordinary's interlocutor dated 20 November 2012, sustain the petitioner's first plea-in-law, grant declarator that SLAB's refusal was unlawful, and remit the petition to a Lord Ordinary to proceed as accords.

Submissions for the respondents

[21] The salient points of the argument for the respondents, as outlined in written notes of argument and in oral submission, were as follows.

[22] Senior counsel for the respondents submitted that the dualist theory had been adopted in the United Kingdom as a result of the doctrine of parliamentary supremacy and the separation of powers. Obligations of an international order were entered into by the executive, whereas Parliament as the legislature enacted the law applicable within the United Kingdom. Parliament chose whether or not to translate international obligations into the domestic law. Conceptual models included (a) no such translation (cf dicta of Lord Ross at page 324 of Kaur v Lord Advocate 1980 SC 319); (b) selective translation (cf the Human Rights Act 1998; the Scotland Act 1998; and the Legal Aid (Scotland) Act 1986 Schedule 2 Part I paragraph 2, concerning references from Scottish courts to the European Court of Justice in Luxembourg); and (c) the doctrine of the primacy of European Union law, whereby EU law was not directly effective, but Parliament (in the European Communities Act 1972) stated that it will give effect to that primacy while retaining parliamentary supremacy.

[23] In particular, the following articles of the European Convention on Human Rights had not been translated into domestic legislation: article 1 (obligation to respect human rights); 13 (right to an effective remedy); 19 et seq (the establishment of the European Court of Human Rights); 33 (the jurisdiction of the court); 34 (individual applications to the court); 46 (contracting parties bound by the judgments of the court). While the signatories accepted the binding nature of the court's rulings, no decision was enforceable in the UK (contrast with the enforcement procedures for decrees from foreign courts). In terms of section 2(1) of the Human Rights Act 1998, UK courts had to "take into account" the decisions of the European Court of Human Rights (cf dicta in Chester v Secretary of State for Justice [2013] 3 WLR 1076, Lord Mance at paragraph 17, Lord Sumption at paragraph 120). Reference was made to the European Communities Act 1972, sections 1(2), 2(1) and 3(1), the latter providing that courts had, so far as possible, to read and give effect to domestic legislation in a way compatible with Convention rights (ie not an absolute obligation).

[24] It was of note that there was direct statutory provision for legal aid for a reference from a Scottish court to the European Court of Justice in Luxembourg (Legal Aid (Scotland) Act 1986 Schedule 2 Part 1 paragraph 2, and Rules of the Court of Session 65.2 and 65.5). No such direct statutory provision had been enacted for the European Court of Human Rights in Strasbourg.

[25] In the present case, the question at issue was "the application of Scots law". In Smith v Scott 2007 SC 345, the application of Scots law in respect of a similarly disenfranchised serving prisoner comprised the granting of a declarator of incompatibility. Any further procedures or remedies available in the Strasbourg court did not constitute the application of Scots law. It was unnecessary to define "Scots law": it was sufficient to conclude that any application made by Mr Smith to Strasbourg and any decision which might result therefrom were not part of Scots law.

[26] Article 34 of the Convention did not impose a general positive obligation to give advice. The case of Naydyon v Ukraine (App 16474/03) 14 October 2010 did not support a right to legal aid or legal advice and assistance for the Strasbourg court. While any EU law not translated into domestic law could not be directly given effect to in Scotland, Parliament had nevertheless undertaken to give EU law primacy (cf the European Communities Act 1972).

[27] Senior counsel for the petitioner had referred to a Framework Decision in Assange v Swedish Prosecution Authority Nos 1 and 2 [2012] 2 AC 471. But as there was a specific UK statute making provision for European Arrest Warrants, Assange was not authority for the proposition that EU law "permeated" UK law. As for Ahmed v HM Treasury [2010] 2 AC 534, while paragraph 80 seemed to give support for the permeation theory, paragraph 75 made it clear that the source of the rights was domestic law (entirely consistent with the dualist analysis).

[28] No amount of interpretation or construction could elide or defeat the dualist analysis. The court should reject the definition of human rights offered by senior counsel for the petitioner. It was too broad and inspecific to be workable.

[29] The Lord Ordinary had not erred in his decision. The reclaiming motion should be refused.

Discussion
Whether different tests in section 6(1)(a)(ii) and in section 6(1)(b)

[30] In our opinion, the phrase in section 6(1)(b) of the 1986 Act, namely "any steps mentioned in paragraph (a)(ii) above", refers back to the categorisation of steps in section 6(1)(a)(ii), namely "any steps which that person might appropriately take ... having regard to the application of Scots law to those circumstances". That categorisation cannot, in our view, be read as steps assisting in circumstances where Scots law does not apply. Regard is to be had to the application of Scots law "to" those circumstances. On a straight reading of those words, Scots law cannot be said to apply "to" those circumstances if Scots law offers no application at all. Accordingly we do not accept (i) that SLAB is empowered to finance steps that a person might appropriately take independently of the application of Scots law; (ii) that section 6(1)(b) of the 1986 Act sets out a separate and distinct test which could be satisfied even if Scots law did not apply to the circumstances; or (iii) that section 6(1)(b), properly construed, covers circumstances where it has been ascertained that there are no remedies available to the individual in Scots law.

The proper construction of section 6 of the 1986 Act

[31] The focus of the debate to date has been on the phrase "Scots law", but we consider that the phrase to be construed is "the application of Scots law". In our opinion, the phrase "the application of Scots law", properly construed, refers to law which can be applied and/or enforced in Scotland. The intention of Parliament was to provide funding for persons seeking to apply and/or enforce such law. The test is, therefore, whether it is law which, when brought to the attention of lawyers or law courts in Scotland, could be applied and/or enforced there.

[32] What, then, is included in such law? It may not be possible to give an exhaustive summary. There was ultimately no dispute between counsel that the following types of law are included: Scots common law; Scots international private law; Scots customary international law (cf paragraph 23 of Lord Advocate's reference no 1 of 2000 2001 JC 143 paragraphs 23, 104); Scottish legislation (primary and secondary); and UK-wide legislation (primary and secondary). Nor was there any dispute that human rights law and European law so far as incorporated into Scots law (usually by statute) are included.

[33] However there was dispute over international law, human rights law, and European law which had not been translated into domestic Scots law by statute. The petitioner's position was that such law might nevertheless be applicable and enforceable in Scotland; the respondents' position was that it would not, because of the dualist analysis (cf paragraphs [14] and [15] of the Lord Ordinary's opinion).

[34] For our part, we accept that, in general, international treaties not translated into Scots law by statute cannot be applied and/or enforced in Scotland (R v Lyons [2003] 1 AC 976, Lord Hoffmann at paragraphs 26 to 28; Whaley v Lord Advocate 2008 SC (HL) 107 Lord Hope of Craighead at paragraph [8]; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, Lord Templeman at pages 476 to 477; R (Chester) v Secretary of State for Justice [2013] 3 WLR 1076 Lord Sumption at paragraphs 119 to 120). However we also accept that courts in Scotland will (when possible) endeavour to comply with EU law which has not been incorporated into domestic law: cf dicta of Lord Bingham and Lord Hoffmann in R v Lyons [2002] UKHL 447, [2003] 1 AC 976 paragraphs 13 and 27:

"13 [Lord Bingham] ... It is true ... that rules of international law not incorporated into national law confer no rights on individuals directly enforceable in national courts. But although international and national law differ in their content and their fields of application, they should be seen as complementary and not as alien or antagonistic systems. Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law. I would further accept ... that the efficacy of the Convention depends on the loyal observance by member states of the obligations they have undertaken and on the readiness of all exercising authority (whether legislative, executive or judicial) within member states to seek to act consistently with the Convention so far as they are free to do so ...

27 [Lord Hoffmann] ... 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 Chievely said in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at page 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]'"

[35] See too dicta of Lord Hope in T, petitioner 1997 SLT 724 at page 734C-D:

"... In my opinion, the courts in Scotland should apply the same presumption as that described by Lord Bridge [at pages 747H-748A of R v Home Secretary, ex p Brind [1991] 1 AC 696], namely that when legislation is found to be ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it."

[36] In addition to the guidance noted above, there are examples of decisions and expressions of opinion by distinguished jurists, suggesting that an international treaty or a Framework Decision not translated into domestic law by statute might nevertheless be applied and/or enforced in the domestic system: see, for example, Collins J, "Foreign Relations and the Judiciary" (2002) 51 ICLQ 485, at pages 495 to 496; Lewis v Attorney General of Jamaica [2001] 2 AC 50; Ahmed v HM Treasury [2010] 2AC 534 paragraphs 12 and 81; Assange v Swedish Prosecution Authority nos 1 and 2 [2012] 2 AC 471.

[37] Nevertheless we consider that the guidance given in R v Lyons and T petitioner, and the opinions referred to in paragraph [36] above (which were reached in the particular circumstances of each case), do not have the effect of extending the phrase "the application of Scots law" in section 6 of the 1986 Act to the unincorporated treaty and convention provisions referred to by senior counsel for the petitioner (such as article 34 of the European Convention on Human Rights, article 4(3) of the Treaty on European Union, and article 47 of the Charter of Fundamental Rights of the European Union). None of these treaty or convention provisions has been translated into Scots domestic law. To hold that the phrase "the application of Scots law" in section 6 of the 1986 Act extends to those unincorporated European treaty and convention provisions would be a major innovation in the proper approach to the construction of Scottish legislation which cannot, in our view, be justified by reference to these authorities. It would not accord with the plain meaning of the statute. It would not reflect the mischief at which the statute is aimed (which in our view is the provision of funding where necessary for persons seeking to apply or enforce the law in Scotland). It would not accurately express the purpose of the legislation.

[38] For completeness, however, we consider the terms of the articles referred to above (namely articles 34, 4(3), and 47) in the context of the extent of section 6 of the 1986 Act.

[39] Article 34 of the European Convention on Human Rights provides:

"Article 34

Individual applications

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

[40] We agree with the Lord Ordinary's observations relating to article 34 as set out in paragraph [13] of his opinion (page 53C-D of the reclaiming print) where he notes:

"... 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."

We do not accept that article 34 has the effect of enhancing the ambit of the legal advice and assistance referred to in section 6 of the 1986 Act as submitted on behalf of the petitioner. We should add that neither do we accept that the current ambit of section 6 "hinders" the effective exercise of individual application to the European Court of Human Rights. Individual applications may be made by completing and posting a standard printed application form to "The Registrar, European Court of Human Rights, Council of Europe, F-67075 Strasbourg cedex" (see page 8 of European Court of Human Rights Questions and Answers). The application form requests the insertion of personal details, the member state against whom the application is made (the UK), a brief statement of facts (for example, "I am a serving prisoner and as a result of the blanket ban I am not allowed to vote"), a statement of the alleged Convention violation and any relevant court decision (which should have been identified at the diagnostic interview). The application form is received by the registry department at the Strasbourg court. It is sifted. If the complaint is stateable - which the petitioner's clearly is, in view of the fact that there is a blanket ban on prisoners voting in the UK, contrary to the decision of the European Court of Human Rights in Hirst v UK (No 2) (App 74025/01) (2006) 42 EHRR 41, 19 BHRC 546 - the registry department then put the application into a format acceptable to the European court. Legal aid is available from the European court (cf paragraph [19] of the Lord Ordinary's opinion and the European Court of Human Rights rule 101). Thus the Strasbourg court is readily accessible to someone such as the petitioner: cf the views expressed by the European Court of Human Rights in paragraph [39] of McLean and Cole v UK (Application nos 12626/13 and 2522/120) 26 June 2013.

[41] Article 4(3) of the Treaty on European Union provides:

"Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out the tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives."

[42] Article 4(3) places obligations upon the signatories to the treaty. The member states are bound to assist each other, take appropriate measures, facilitate achievement of the Union's tasks and refrain from jeopardising the attainment of the Union's objectives. These are broad obligations which may be made effective by particular steps taken by the member states. But article 4(3) does not, in our view, have the effect of extending the ambit of section 6 as submitted on behalf of the petitioner. In particular, the article does not affect the plain meaning of the phrases "the application of Scots law to any particular circumstances which have arisen in relation to the person seeking advice" (section 6(1)(a)(i) of the 1986 Act), and "any steps which that person might appropriately take ... having regard to the application of Scots law to those circumstances" (section 6(1)(a)(ii)).

[43] Article 47 of the Charter of Fundamental Rights of the European Union provides:

"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previous established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice."

[44] Again in our opinion this article places obligations on member states. The obligations are complied with by steps taken by the member states. Examples of such steps include the Scotland Act 1998 and the Human Rights Act 1998. Section 57 of the Scotland Act 1998 and section 1 and Schedule 1 of the Human Rights Act 1998 have the effect that article 6 of the Convention on Human Rights (entitlement to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law) has been incorporated into domestic law and can be applied and/or enforced in Scotland by someone such as the petitioner. The Legal Aid Scotland Act 1986 provides for legal aid in Scotland, reflecting the third paragraph of article 47.

[45] In relation to that third paragraph, the explanation provided by the Praesidium of the European Convention was as follows:

"With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union."

Thus the member states have an obligation to provide legal aid where the absence of such aid would make it "impossible" to ensure an effective remedy. Several points can be made. First, the obligation rests on the member state. Secondly, legal aid has been provided in Scotland (the 1986 Act and the 1996 Regulations). Thirdly, we do not accept that the current scheme of Scottish legal aid and legal advice and assistance makes it "impossible" for the petitioner to make an application to the Strasbourg Court. As noted in paragraph [40] above, a standard application form may be completed and posted to Strasbourg.

[46] In the result therefore we have found nothing in articles 34, 4(3) or 47 which might affect the extent of section 6 of the 1986 Act, even if there were not the fundamental point that some of, or some parts of, these articles have not been translated into domestic Scots law. It was suggested to us that if the petitioner were not granted that advice and assistance, he would have nowhere to turn, and would in effect be subjected to a regime which deprived him of access to an effective remedy. We cannot agree. The information given to the petitioner during the diagnostic interview would (or should) be sufficient to alert him to the fact that (a) no remedy is available to him in Scotland - other than a declarator of incompatibility, already achieved in the Scottish decision Smith v Scott 2007 SC 345, and referred to with approval in the English case of Tovey v Ministry of Justice [2011] HRLR 17, and therefore not advancing the petitioner's cause if a duplicate of such a declarator were to be obtained; (b) he might obtain "just satisfaction" under article 41 of the Convention in the European Court of Human Rights in Strasbourg; (c) all that he required to do to commence proceedings in the European Court of Human Rights was to complete a pro forma application form: see paragraph [40] above.

[47] We therefore agree with the conclusion reached by the Lord Ordinary in paragraph [19] of his opinion, namely:

"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 possible diagnostic interview."

[48] We also find support for that conclusion in two illustrations of Scots law as it stands at present.

[49] The first illustration was mentioned by both counsel, and concerns applications to the European Court of Justice in Luxembourg. Parliament has chosen to legislate such that the making of a reference to the European Court of Justice in Luxembourg may be funded by legal aid: the Legal Aid (Scotland) Act 1986, Schedule 2 Part I paragraph 2, and the relevant Rules of the Court of Session (rules 65.2 and 65.5). By contrast, no such express statutory provision has been made in respect of applications to the European Court of Human Rights in Strasbourg. The very fact that such an express provision has been enacted for the Court in Luxembourg, but not for the Court in Strasbourg, suggests that Parliament's intention was not to provide legal aid or legal advice and assistance to persons seeking to commence proceedings in Strasbourg.

[50] The second illustration is the sequence of events and possible future steps which could have been taken by the prisoner in Smith v Scott 2007 SC 345. Mr Smith was a serving prisoner refused electoral registration. He appealed against the decision of the electoral registration officer. The appeal came before the registration appeal court. That court held that section 3 of the 1983 Act could not be "read down" so as to be Convention-compliant (cf section 3 of the Human Rights Act 1998; Ghaidan v Godin-Mendoza [2004] 2 AC 557). To that extent, Mr Smith was unsuccessful. However the court then proceeded to grant Mr Smith the one remedy which was open to the Scottish court, namely a formal declarator of incompatibility in terms of section 4(2) of the Human Rights Act 1998 to the effect that section 3(1) of the 1983 Act failed to comply with article 3 of the First Protocol of the Convention. Such a declarator, it was thought, might result in Parliament's taking account of its non-compliance and changing the offending legislation such that it became Convention-compliant. Mr Smith was accordingly successful in achieving the only remedy available to him in Scots law.

[51] Parliament has not amended section 3(1) of the 1983 Act. There is still a blanket ban preventing serving prisoners from voting. There are no further remedies available in Scots law to someone such as Mr Smith: cf paragraph [9] of the Lord Ordinary's opinion:

" ... 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."

[52] However as the United Kingdom is a signatory to the European Convention on Human Rights, a convicted and serving prisoner such as Mr Smith could, if he so wished, take matters further by applying to the European Court of Human Rights in Strasbourg, seeking any remedies which the European Convention and the Strasbourg court might offer (as the petitioner's solicitor sets out in his application, quoted in paragraph [3] above). If the individual is successful in the Strasbourg court, that court's judgment might identify violations occurring in the United Kingdom and indicate what ought to be done in order to comply with the Convention. Such a judgment might - if it is possible - be given effect to by a judgment of the domestic court, although those courts are currently restricted in their powers by the clear wording of the Representation of the People Act 1983 (cf Smith v Scott). Alternatively the individual might be awarded damages by the Strasbourg court. Any such award of damages would not enforceable in a court in the United Kingdom, but it is understood that the government might make the payment in view of its international obligations as signatory to the Convention: cf article 46 of the Convention; Brumarescu v Romania (App 28342/95) 23 January 2001 at paragraph 19.

[53] It will be seen that in these circumstances the aggrieved prisoner makes an application to the European Court of Human Rights in Strasbourg (not a UK court) seeking vindication of rights arising directly from the Convention (not from domestic legislation such as the Human Rights Act 1998 or the Scotland Act 1998 or from Scots common law shaped by the Convention). The application is processed by the registry department of the Strasbourg court. The aggrieved prisoner may receive legal aid from the Strasbourg court. Ultimately the aggrieved prisoner may achieve a remedy from the Strasbourg court which is in itself unenforceable in the UK. Thus this hypothetical example of the further steps which a disenfranchised prisoner such as Mr Smith might take illustrates that any disenfranchised prisoner embarking upon a claim to the European Court of Human Rights in Strasbourg cannot be categorised as seeking "advice ... on the application of Scots law", or "advice ... as to any steps which ... might appropriately [be taken] having regard to the application of Scots law", or "assistance ... in taking [such] steps".

Conclusion

[54] In our opinion, for the reasons given above, the petitioner's request for additional legal advice and assistance cannot be categorised as seeking "advice ... on the application of Scots law" (section 6(1)(a)(i)) or "advice ... as to any steps which ... might appropriately [be taken] having regard to the application of Scots law" (section 6(1)(a)(ii)) or "assistance ... in taking [such] steps" (section 6(1)(b)). Nor are we persuaded that European or human rights material as yet untranslated into domestic legislation has the effect of entitling the petitioner to legal advice and assistance beyond a diagnostic interview, or of empowering or compelling the board to grant such advice and assistance. We consider that the board were correct in their approach, and that the petitioner was entitled to legal advice and assistance in respect of a diagnostic interview only. We therefore agree with, and adopt, the conclusion reached by the Lord Ordinary in paragraph [19], namely:

"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 possible diagnostic interview".

Decision

[55] We shall accordingly refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary. At the request of senior counsel for the respondents, we shall put the petition out for a hearing by order before pronouncing a formal interlocutor.