Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 6
P483/12	OPINION OF LORD BRODIE in the Petition of GEORGE McGEOCH Petitioner; for Judicial Review of decisions of the Scottish Legal Aid Board ________________

Petitioner: O'Neill QC, Pirie; Balfour & Manson LLP (For Taylor & Kelly, Coatbridge)

Respondent: S Wolffe QC; Scottish Legal Aid Board

15 January 2013

Introduction

[1] The petitioner is a United Kingdom national and a citizen of the European Union. He is currently serving a sentence of life imprisonment in HM Prison, Low Moss, which is in Scotland. The punishment part of the petitioner's sentence is 13 years commencing on 7 October 1998. The petitioner has a further consecutive sentence to serve in connection with another offence. The earliest date on which the petitioner might be considered for parole is July 2015.

[2] The respondent is the Scottish Legal Aid Board. The respondent is constituted in terms of section 1 of the Legal Aid (Scotland) Act 1986 ("the Act"). In the Act it is referred to as "the Board". Its general functions are to secure that legal aid and advice and assistance are available in accordance with the Act and to administer the Scottish Legal Aid Fund.

[3] By way of petition for judicial review the petitioner seeks orders: (a) for declarator that certain decisions made by the respondent in respect of applications made by the petitioner for grants to be paid from the Scottish Legal Aid Fund by way of advice and assistance and civil legal aid were unlawful because (i) they were made in implementation of an undisclosed policy by the respondent contrary to the intent and purposes of the jurisdiction and powers conferred on the respondent by the Act, (ii) separately because each of these decisions was vitiated by error of law, (iii) separately because each of these decisions contravened the petitioner's EU law right to legal aid as guaranteed and protected under Article 47 (3) of the EU Charter of Fundamental Rights, and (iv) because each of these decisions was irrational; (b) for reduction of these decisions; (c) for payment to the petitioner by the respondent of the sum of £10,000 by way of vindicatory damages; (d) for the expenses of the application; and (e) for such other relief or remedy or orders as the Court considers just and appropriate.

The relevant provisions relating to civil legal aid and advice and assistance

[4] The Act makes provision, inter alia, for making available civil legal aid, and advice and assistance. Its provisions include provisions conferring power to make regulations in relation to civil legal aid and advice and assistance. The Legal Aid and Advice (Scotland) (Consolidation and Amendment) Regulations 1996, SI 1996/2447 ("the 1996 Regulations") and the Civil Legal Aid (Scotland) Regulations 2002, SSI 2002/494 ("the 2002 Regulations")were made in terms of these powers.

[5] Part III of the Act makes provision for making available civil legal aid. In terms of section 13 of the Act "civil legal aid" means representation by a solicitor and, where appropriate, by counsel in proceedings, inter alia, before the Court of Session and the United Kingdom Supreme Court. It includes all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to such proceedings. A person will be eligible for civil legal aid if he meets the financial conditions contained in section 15 of the Act. Section 14 (1) of the Act provides:

"Subject to section 15 of this Act and to subsection (2) below, civil legal aid shall be available to a person if, on an application made to the Board-

(a the Board is satisfied that he has a probabilis causa litigandi; and

(b) it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid. "

In terms of regulation 4 (1) of the 2002 Regulations, for the purposes of civil legal aid proceedings in the Court of Session before a Lord Ordinary at first instance are distinct from proceedings (albeit in the same cause or petition) before the Inner House on appeal.

[6] As appears from section 14 (1) of the Act, in order for civil legal aid to be made available, a person must make an application which is sufficient in its terms to allow the respondent to ascertain his eligibility by reference to the financial conditions and to allow the respondent to be satisfied as to his having probabilis causa litigandi and that the particular circumstances of his case make it reasonable that he should receive legal aid. Provision for the making of applications and their determination is made in parts II and IV of the 2002 Regulations. Drafting an application is likely to require the services of a solicitor.

[7] The services of a solicitor may be obtained as advice and assistance, as provided for by part II of the Act. In terms of section 6, "advice and assistance" includes oral or written advice provided to a person by a solicitor or where appropriate by counsel on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice and as to any steps which that person might appropriately take having regard to the application of Scots law to those circumstances. 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 of regulation 12 (1) of the 1996 Regulations, where at any time it appears to a solicitor that the cost of giving the advice and assistance is likely to exceed the limit applicable under section 10 of the Act, he shall apply to the respondent for its approval to an increased limit, stating the reasons for the excess, the likely amount, and giving such other information as may enable the respondent to consider and determine that application. If it approves such an application the respondent shall authorise such increased limit as it thinks fit. It may require that the advice and assistance be subject to such conditions, and limited to such subject matter as it thinks fit. The respondent shall inform the solicitor of its decision in regard to any such application.

[9] Legal aid may be made available for certain sorts of specially urgent work which require to be undertaken before an application for civil legal aid has been determined. Legal aid for this purpose may be referred to as "special urgency cover". Provision is made for special urgency cover by regulation 18 of the 2002 Regulations which is, inter alia, in the following terms:

"Legal aid in matters of special urgency

18. - (1) The Board may make legal aid available for specially urgent work undertaken before an application is determined, if it is satisfied that at the time such work was undertaken there was probabilis causa litigandi and it appears to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid, in either of the following circumstances:-

(a) where any step specified in paragraph (2) below has required to be taken as a matter of special urgency to protect the applicant's position; or

(b) in any other circumstances where the Board is satisfied on application that steps require to be taken as a matter of special urgency to protect the applicant's position.

(2) The steps referred to in paragraph (1) (a) above are-

...

(t) initiating or opposing appellate proceedings other than such proceedings in the House of Lords or Judicial Committee of the Privy Council;

...

(3) Where a solicitor undertakes work under paragraphs (1) (a) and (2) above, the solicitor shall, within 28 days of commencement of the work, both notify the Board of such commencement and, if an application for legal aid has not already been submitted, submit an application for legal aid; and failure to do so shall exclude that work from any legal aid that may be made available.

(4) Where the Board is satisfied in accordance with paragraph (1) (b) above that step require to be taken as a matter of special urgency to protect the applicant's position-

(a) the Board shall so certify and may specify that the steps to be taken shall be limited to such work, or such purposes, or such period, or be subject to such conditions, all as it shall consider appropriate in the circumstances; and

(b) the solicitor shall, if an application for legal aid has not already been submitted, submit an application for legal aid within 28 days of commencement of the urgent work and failure to do so shall exclude that work from any legal aid that may be made available.

...

(6) Where work is carried out by a solicitor in the circumstances described in paragraph (1), and an application for legal aid made in terms of section 14 of the Act is subsequently refused-

(a) section 4(2)(a) of the Act shall be modified so that there shall be paid out of the Fund-

(i) where the Board is satisfied as to the factors in paragraph (7), payments to meet such sums as the Board approves; or

(ii)where the Board is not satisfied as to the factors in paragraph (7), any contribution paid by, or expenses awarded to, a person for whom a solicitor has undertaken specially urgent work; and

(b) section 4(3)(b) of the Act shall be modified so that there shall be paid into the Fund any sum recovered under an award of a court or an agreement as to expenses in any proceedings in favour of the person for whom that work is carried out.

(7) The factors referred to in paragraph (6)(a) above are that the Board shall be satisfied that-

(a) the solicitor had reasonable grounds for believing, on the information available at the time the work was done, that the applicant would be eligible for legal aid in terms of section 15 of the Act; and

(b) the work was actually, necessarily and reasonably done, due regard being had to economy. "

[10] Section 14(3) of the Act provides that the respondent shall establish a procedure under which any person whose application for legal aid in terms of section 14 has been refused may apply to the respondent for review of his application. Regulation 20 of the 2002 Regulations provides that an application for review under section 14(3) of the Act shall be signed by the applicant; be lodged with the respondent within 15 days of the time when notice of refusal of the application was given to the applicant (or such longer time as the respondent may in the circumstances allow); include a statement of any matters which the applicant wishes the respondent to take into account in reviewing the application; and be accompanied by such additional precognitions and other documents as the applicant considers to be relevant to the review. The respondent publishes, exclusively on-line, the Scottish Legal Assistance Handbook. I was provided with an excerpt from the Handbook which includes the following:

"1.21 Review of refusal of legal aid

Under section 14(3) of the Act we have to have a procedure so that anyone whose application has been refused may apply to us for a review of the decision. Regulation 20 sets out the formal requirements for an application for review. The application (on form REV/CIV, which we include with the refusal letter) must normally be lodged within 15 days of refusal. However, you can ask us for extra time to send us the application for a review if you have some special reason for needing this, and we may accept a late application if there is special reason to do so.

The applicant

·      must sign the application for review

·      must include a statement of any matters which they wish us to consider

·      must resubmit any papers submitted in support of the original application

·      may also submit further statements or other documents. "

Summary of the decisions sought to be reviewed

[11] The petitioner wished to vote in the elections to the Scottish Parliament on 5 May 2011. A person can vote only if his name is on the electoral register. On 5 November 2010 the petitioner applied to the Electoral Registration Officer ("the ERO") for his name to be included on the electoral register.

[12] Section 3(1) of the Representation of the People Act 1983 provides:

"A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ...is legally incapable of voting at any parliamentary or local government elections. "

Given the terms of section 3 (1) of the 1983 Act, the ERO refused the petitioner's application.

[13] The petitioner wished to apply for judicial review of the ERO's decision. Having regard to the fact that in Hirst v United Kingdom (No. 2) (2005) 42 EHRR 41, the Grand Chamber of the European Court of Human Rights had held that the blanket disenfranchisement of all convicted prisoners fell outside the United Kingdom's margin of appreciation and was incompatible with the Convention right to vote in free elections which is contained in art. 3 of the first Protocol to the European Convention on Human Rights, and that in Smith v Scott 2007 SC 345 the court had pronounced a declaration of incompatibility as between section 3(1) of the 1983 Act and the Convention in terms of s 4(2) of the Human Rights Act 1998, the petitioner wished to put forward a new ground of argument in support of an application for an order requiring the ERO to include him on the Register of Local Government Electors at the address within the constituency where he resided, albeit under detention. This new ground of argument was the contention that the petitioner's disenfranchisement was incompatible with his rights under European Union law ("the EU Ground"). Put shortly, the EU Ground is the contention that section 3(1) of the 1983 Act violates and is incompatible with the right to vote (in the member state's municipal elections and in elections to the European Parliament) which is conferred on nationals of Member States by European Union law and, in particular, by articles 39 and 40 of the Charter of Fundamental Rights of the European Union, taken with article 20(2)(b) of the Treaty on the Functioning of the European Union.

[14] On 1 March 2011, as a first step in funding his proposed petition for judicial review of the ERO's decision to refuse to allow the petitioner to be entered into the Electoral Register ("the Outer House proceedings"), the petitioner applied, through his agents, for advice and assistance, as provided for by part II of the Act. This and the petitioner's subsequent applications (all made through his agents) were submitted on-line, as were the respondents' various responses. In the on-line correspondence between the parties and in the averments in the petition, advice and assistance is described as "standard advice and assistance" (otherwise "A&A"). The respondent granted the application for A&A on 2 March 2011, authorising expenditure up to £95.

[15] On 2 March 2011 the petitioner applied to the respondent under and in terms of regulation 12 of the 1996 Regulations for authorisation of an increased limit of £350, in order to allow his agents to do all necessary preparatory work in relation to the Outer House proceedings. On 8 March 2011 the respondent refused this application to increase authorised expenditure. The petitioner applied for reconsideration of this refusal on 11 March 2011, again on 18 March 2011, again on 23 March 2011, and again on 29 March 2011. In response to these applications for reconsideration, the respondent reiterated its refusal respectively on 16 March 2011, 22 March 2011, 25 March 2011 and 4 April 2011.

[16] On 23 March 2011 the petitioner applied to the respondent for civil legal aid for specially urgent work in terms of regulation 18(1) of the 2002 Regulations, (otherwise special urgency cover) in respect of the Outer House proceedings. On 24 March 2011 the respondent refused this application. On 28 March 2011, with an additional upload on 28 March 2011, the petitioner applied afresh to the respondent for special urgency cover. On 28 and 29 March 2011 the respondent maintained its refusal. The petitioner applied for reconsideration of this refusal on 30 March 2011 (two applications), again on 31 March 2011, and again on 4 April 2011. In response to these applications for reconsideration, the respondent maintained its refusal respectively on 28 March 2011, 29 March 2011, 30 March 2011 (two responses), 1 April 2011 and 5 April 2011.

[17] The petitioner did not apply for civil legal aid in respect of the Outer House proceedings.

[18] Notwithstanding the respondent's refusals of the applications made by the petitioner for approval of an increased limit in respect of A&A and its refusals of special urgency cover, the petitioner proceeded with the Outer House proceedings. The petition came before the Lord Ordinary on 31 March 2011 on the petitioner's motion for orders for intimation and service and for an interim order requiring the ERO to include the petitioner on the Register of Local Government Electors. After hearing submissions on that day and on 7 April 2011 (when the petitioner was represented by agents and senior counsel) on these motions and on the petition as a whole, on 8 April 2011 the Lord Ordinary refused the petition in an opinion reported as McGeoch v The Lord President of the Council 2011 SLT 633. The petitioner reclaimed.

[19] On 18 April 2011, the petitioner applied for A&A in relation to his presenting a reclaiming motion against the decision of the Lord Ordinary ("the Inner House proceedings"). The respondent granted this application for A&A, authorising expenditure up to £95. The petitioner applied for an increase of authorised expenditure to £450. This was granted by the respondent on 26 April 2011.

[20] On 14 April 2011, under and in terms of regulation 18(1)(a) of the 2002 Regulations, and then on 9 May 2011 under and in terms of regulation 18(1)(b) of the 2002 Regulations, the petitioner applied to the respondent for special urgency cover in relation to the Inner House proceedings. On 10 May 2011 the respondent refused the application made on 9 May 2011 under regulation 18(1 (b) of the 2002 Regulations. On 11 May 2011 the petitioner again applied to the respondent for special urgency cover under regulation 18(1)(b). On 11 May 2011 the respondent refused this application. Further applications for special urgency cover made by the petitioner on 24 June 2011, 29 June 2011, and 4 July 2011, were refused by the respondent respectively on 24 June 2011, 29 June 2011, and 6 July 2011.

[21] The petitioner applied for civil legal aid in terms of part II of the Act in respect of the reclaiming motion. On 12 October 2011 the respondent refused this application. The petitioner did not apply for review of that decision in terms of section 14(3) of the Act and regulation 20 of the 2002 Regulations or otherwise challenge it.

[22] Notwithstanding the respondent's refusals of special urgency cover, the petitioner proceeded with the Inner House proceedings and was represented by agents and junior and senior counsel at the hearing of the reclaiming motion before an Extra Division of the Inner House. On 8 November 2011 the court refused the reclaiming motion in an opinion reported as McGeoch v The Lord President of the Council 2012 SLT 224.

[23] On 9 November 2011, the petitioner applied for A&A in relation to pursuing an appeal from the decision of the Inner House to the United Kingdom Supreme Court ("the Supreme Court proceedings"). The respondent granted the application for A&A on 10 November 2011, authorising expenditure up to £95. On 10 November 2011 the petitioner applied to the respondent under and in terms of regulation 12 of the 1996 Regulations for approval of an increased limit of £500, in order to allow his agents to do all necessary work to apply for legal aid. On 11 November 2011 the respondent refused this application to increase authorised expenditure. The petitioner applied for reconsideration of this refusal on 14 December 2011, supplemented by the sending of a copy of the decision of the Inner House on 19 December 2011 and a copy of counsel's opinion on 20 January 2012. The respondent advised that the authorised limit was not increased on 14 December 2011, 16 January 2012 and 20 January 2012. Subsequently the petitioner's application for civil legal aid in relation to his appeal to the Supreme Court was granted. I understand that appeal currently to be pending.

[24] In his Note of Argument, number 11 of process, the petitioner summarises the relevant decisions as the decisions made by the respondent on 8 March 2011, 16 March 2011, 22 March 2011, 24 March 2011, 25 March 2011, 28 March 2011, 29 March 2011, 30 March 2011, 1 April 20114 April 2011, 5 April 2011, 10 May 2011, 11 May 2011, 24 June 2011, 6 July 2011, 12 October 2011, 11 November 2011, and 14 February 2012. To these might be added the decision of 29 June 2011 (statement 32 of the petition). As appears from the above the relevant decisions fall into five categories. The decisions made on 8 March 2011, 16 March 2011, 22 March 2011, 25 March 2011, and 4 April 2011 relate to the petitioner's applications in terms of regulation 12 of the 1996 Regulations for authority to exceed the financial limit as to the cost of advice and assistance in respect of the Outer House proceedings. The decisions made on 24 March 2011, 28 March 2011, 29 March 2011, 30 March 2011 (two decisions), 1 April 2011, and 5 April 2011 relate to the petitioner's applications in terms of regulation 18 of the 2002 Regulations for special urgency cover in respect of the Outer House proceedings. The decisions made on 10 May 2011, 11 May 2011, 24 June 2011, 29 June 2011, and 6 July 2011 relate to the petitioner's applications in terms of regulation 18 of the 2002 Regulations for civil legal aid for special urgency cover in respect of the Inner House proceedings. The decision made on 12 October 2011 relates to the petitioner's application for civil legal aid in respect of the Inner House proceedings. The decisions made on 11 November 2011, and 14 February 2012 relate to the petitioner's applications in terms of regulation 12 of the 1996 Regulations for authority to exceed the financial limit as to the cost of advice and assistance in respect of the Supreme Court proceedings.

Procedure in this petition

[25] First orders were granted on 11 May 2012 and a two-day diet on 12 and 13 July 2012 fixed as a first hearing. The petition came before me on 12 July 2012. The petitioner was represented by Mr O'Neill QC and Mr Pirie. The respondent was represented by Mrs Wolffe QC. The petitioner's Note of Argument, number 11 of process, had been lodged on 9 July 2012. The respondent's Provisional Note of Arguments, number 10 of process, had been lodged on 6 July 2012.

[26] Answers to the petition had been lodged on 4 July 2012. A minute of amendment for the respondent had been received on 9 July 2012. I granted Mrs Wolffe's motion on behalf of the respondent to amend the answers in terms of the minute of amendment.

[27] The respondent's answers, as amended, contained a general plea to relevancy and specification (plea-in-law 3) and two other preliminary pleas, one of personal bar by reason of mora, taciturnity and acquiescence (plea-in-law 1), the other to the effect that given the doubtful utility of reduction, the petition should not be permitted to proceed for the sole purpose of a claim for damages (plea-in-law 2).

[28] At paragraphs 34 and 35 of the respondent's Provisional Note of Arguments, it is suggested, under reference to the observations of Lord Brailsford in McGinty v Scottish Ministers [2011] CSOH 163 at para 29 that the first hearing of the petition be confined to consideration of the preliminary issues of mora and doubtful utility. Mr O'Neill, on behalf of the petitioner, opposed this suggestion on the basis that any application to restrict the scope of the first hearing should have been made earlier, that the petitioner had prepared for a first hearing on the merits of the petition (preparations that included the writing of an extensive Note of Argument), that the two days assigned for the first hearing would be sufficient for all of the parties' pleas-in-law to be discussed, that the procedure that the respondent proposed risked delaying the determination of the merits and that such procedure would be a waste of time and public money. In support of his position Mr O'Neill referred to what had been said in Somerville v Scottish Ministers 2008 SC (HL) 45, by Lord Hope at para 65 and by Lord Rodger at para 157: the aim of the pleadings and procedure adopted in proceedings for judicial review should be to focus the issues so that the court can reach a decision upon them, in the interests of sound administration and in the public interest, as soon as possible; proceedings should be brought promptly and disposed of promptly. I was persuaded by Mr O'Neill, for the reasons that he had advanced, to follow the course he advocated and hear parties on all their pleas. On the basis that the Note of Argument represented a full statement of the petitioner's position, I invited Mrs Wolffe to begin. I then heard Mr O'Neill in reply and, finally, Mrs Wolffe in a very brief second speech. Mr O'Neill supplemented his oral submissions with a written Response (with Appendix), adopting but expanding upon his Note of Argument and responding, to the extent that he considered this to be necessary, to Mrs Wolffe's submissions. The first hearing was completed in the two days allowed.

The argument in outline

[29] Given the detailed nature of the written submissions contained in the petitioner's Note of Argument and Response and the respondent's Provisional Note of Arguments, I do not intend to rehearse the submissions, written or oral, at length. However, at this point it is convenient to set out the parties' respective positions and to identify what appeared to me to be the issues between them.

The petitioner

[30] Although it was Mrs Wolffe who addressed me first and it was her Provisional Note of Argument for the respondent that was lodged first in process (with the result that the Note of Argument for the petitioner included the petitioner's reply to what appeared in the respondent's Note) I shall begin by setting out the petitioner's position in support of the remedies sought at statement 41 of the petition (declarator, reduction and damages).

[31] It was the petitioner's position that he wished the respondent to secure that legal aid and advice and assistance were available to him in order to fund a petition for judicial review of the ERO's decision on the EU Ground. He made the various applications specified above but, until civil legal aid was granted for an appeal to the United Kingdom Supreme Court on 21 May 2012, these applications were refused other than the grant of A&A on 2 March 2011, authorising expenditure up to £95 in respect of the Outer House proceedings and the grant of A&A on 18 April 2011 with an increase of authorised expenditure to £450 granted on 26 April 2011 in respect of the Inner House proceedings. It was the petitioner's first contention, as focused in his second and fourth pleas-in-law and developed in paragraphs 5.3 to 5.10 of his Note of Argument, that the respondent's decisions refusing these applications were unlawful in that: they were irrational; they were procedurally unfair; the respondent failed to take account of material considerations in making them; the respondent mistook the material that was placed before it in making them; the respondent made errors of law going to their root in making them; and the respondent gave inadequate reasons for making them. It was the petitioner's second contention, as focused in his first plea-in-law and developed in paragraphs 5.11 to 5.21 of his Note of Argument, that the respondent's decisions refusing these applications were made in implementation of an undisclosed policy and consequently unlawful: first, in that it constituted a fetter on the discretion that the respondent ought to have exercised in determining the applications; second, in that being undisclosed it was by virtue of that fact unlawful; and, third, because the respondent gave no reason for departing from its policies as published in its Scottish Legal Assistance Handbook which include considering each application on its merits. It was the petitioner's third contention, as focused in his third plea-in-law and developed in paragraphs 5.22 to 5.28 of his Note of Argument, that the respondent's decisions refusing these applications were contrary to the European Union Charter of Fundamental Rights. It was the petitioner's fourth contention, as focused in his fourth plea-in-law and developed in paragraphs 5.29 and 5 30 of his Note of Argument, that the respondent's decisions refusing the applications relating to the Outer House and Inner House proceedings were irrational and therefore unlawful in that in determining to grant the petitioner civil legal aid in order to appeal to the United Kingdom Supreme Court the respondent must be taken to have accepted that (a) the petitioner had probabilis causa litigandi in an application for judicial review of the ERO's decision and (b) it is reasonable that the petitioner should receive civil legal aid.

[32] In his oral submission Mr O'Neill, while adopting the Note of Argument and Response, concentrated on three topics: undisclosed policy, Francovich damages, and the petitioner's right to legal aid as guaranteed and protected under article 47(3) of the European Union Charter of Fundamental Rights.

[33] In developing his submission that, on the basis of all the material before the court, the petitioner was entitled to explore his averment that the respondent's decisions were unlawful because they were made in implementation of an undisclosed policy on the part of the respondent contrary to the intent and purpose of the Act at a second hearing where officers of the respondent should be made available for cross-examination by him, Mr O'Neill had much to say about the nature and purpose of proceedings for judicial review. In Mr O'Neill's treatment of that topic, Scotland suffered in comparison to England by reason of it having clung, so it was submitted, to a private law paradigm in judicial review rather than embracing the public law paradigm which was appropriate to public law questions. One such question in the present case was whether the respondent had duly discharged its duties in adopting good governance and respecting the rule of law. In public law proceedings, so Mr O'Neill submitted, the focus should not be on finer points of specification and relevancy of pleadings but, rather, on whether notice was to be take of public wrongs: cf R v Somerset County Council, ex p Dixon [1998] Env LR 111, AXA General Insurance v Lord Advocate 2011 SLT 1061 at para 169. What the present petition sought to do was to bring attention to a misuse of public power. There was therefore a public interest in these proceedings additional to that of the petitioner. Such proceedings had an educative function for everyone. The court had accordingly a duty to review the relevant administrative decisions in such a way as to ensure that public bodies respected the rule of law by making decisions which complied with the classic administrative principles of lawfulness, fairness and reasonableness: R v Lancashire County Council ex p Huddleston [1986] 2 All ER 941. The concentration had to be on the respondent's decisions and not on the petitioner's pleadings. Mrs Wolffe's approach was misplaced and her argument fundamentally flawed. In particular, she confused the issue of whether decisions can and should be made subject to judicial review with the issue of what remedy might be pronounced following that review. In presenting the argument for the respondent, so Mr O'Neill submitted, counsel had set up the case for saying that no effective remedy could be granted in respect of the decisions whose invalidity she did not concede and then said that this must mean that they could not be judicially reviewed. This elided the need to defend these decisions on the merits. What the court should do was to examine the challenged decisions in order to see if they stood up to scrutiny and if not, then go on to consider what remedy might be pronounced in relation to the decision that had been successfully impugned.

[34] Turning to the particular decisions challenged in the present case, Mrs Wolffe had suggested that a number of these decisions had been made under an understandable misapprehension on the part of the respondent that the proposed application for judicial review was identical to other cases involving prisoners' entitlement to vote based on the European Convention on Human Rights as opposed to EU law. This, said Mr O'Neill, was just wrong. From the outset in relation to the applications for special urgency cover and civil legal aid it had been made plain by the petitioner's representatives that the proposed judicial review relied on rights under EU law. Indeed, as early as 2 March 2011 in relation to an increase in the limit for A&A, the petitioner had set out in detail what the case was about. At no time had that been acknowledged by the respondent. The petitioner's approach had just not been dealt with. This was rather shocking. The respondent should be held to the highest standards whereas, as Mr O'Neill put it, "these are some of the poorest decisions I have seen". The quality of the respondent's decisions was in marked contrast to the "judge over the shoulder" approach which had now taken off in England but which had taken so long to take off in Scotland. It should not have been necessary repeatedly to ask a public body in a democracy which was responsible for the management of public funds to explain its position, as the petitioner had required the respondent to do on 18 March 2011 and again on 23 March 2011. Mrs Wolffe, on behalf of the respondent, had made no reference to cases decided by the European Court of Justice, only to cases dealing with other matters. This exemplified what had been the approach of the respondent in the whole matter which was to ignore the significance of EU law. This was appalling. It meant that the respondent was not carrying out its duties. It was simply putting up a brick wall. There must be something behind that brick wall which was not fit for purpose. There was something which not right in the respondent. It was for the court to find out what that was. A concession followed by declarator was not enough. In the ordinary case nothing would have happened in the face of such conduct. Only a compulsive obsessive (a reference, as I understood it, by Mr O'Neill to his instructing solicitor) would have persevered. In these circumstances, a judgment of the court was required demonstrating how and when the respondent had erred; fiat justitia ruat caelum.

The respondent

[35] When she came to address me on behalf of the respondent, Mrs Wolffe conceded that certain of the decisions complained of were vitiated as having been made in error of law and supported by inadequate reasons. These were the following: the decision of 22 March 2011 to refuse to reconsider an application for authority to exceed the financial limit as to the cost of advice and assistance in respect of the Outer House proceedings originally made on 2 March 2011, refused on 8 March 2011, renewed by an application for reconsideration on 11 March 2011, refused on 16 March 2011 and renewed by an application for reconsideration on 18 March 2011 (statement 8 of the petition); the decision of 25 March 2011 to refuse an application to reconsider refusal of the application for authority to exceed the financial limit as to the cost of advice and assistance in respect of the Outer House proceedings made on 23 March 2011 (statement 10 of the petition); the decision of 4 April 2011 to refuse an application to reconsider refusal of the application for authority to exceed the financial limit as to the cost of advice and assistance in respect of the Outer House proceedings made on 29 March 2011 (statement 12 of the petition); and the decision of 12 October 2011 to refuse the application for civil legal aid in respect of the Inner House proceedings made on 9 May 2011 (statement 34 of the petition). The admittedly erroneous decisions were not due to the application of any blanket policy. The error on the part of the respondent had been to fail to understand that the petitioner's application for judicial review was not simply identical to other prisoner voting rights cases which had been previously litigated on the basis of contravention of the European Convention on Human Rights. While conceding error on the part of the respondent, Mrs Wolffe did not concede that the admittedly unlawful decisions should be reduced. There was, she submitted, no purpose to be served in reducing these decisions. A grant of A&A could not be backdated in that payment depended on approval of expenditure having been given in advance: Drummond & Co v Scottish Legal Aid Board 1992 SC (HL) 1. Neither could civil legal aid or special urgency cover. It was to be borne in mind that the petitioner had not applied for civil legal aid in respect of the Outer House proceedings. A&A was not available to fund representation. The petitioner had applied for A&A in order to fund the work involved in making an application for civil legal aid. That work can be taken as not having been done. As far as special urgency cover was concerned, in terms of regulation 18(3) and (4) of the 2002 Regulations, in the event of a solicitor undertaking such work he must within 28 days of its commencement submit an application for civil legal aid and if he fails to do so, then that work is to be excluded from any legal aid that may be made available. Thus, albeit that it was the respondent's position that the applications for special urgency cover had been properly refused on the basis that any urgency had been self-created, in the present case, because there had been no application for civil legal aid within the 28-day period, such work as the petitioner might claim should have qualified as specially urgent and therefore as falling within regulation 18(1) of the 2002 Regulations could not in any event be paid for. There was no reason, submitted Mrs Wolffe, why the petitioner could not have applied for civil legal aid in March 2011, assuming he met the financial criteria (which it was later found he did in relation to the application for civil legal aid for the appeal to the United Kingdom Supreme Court). His legal advisers could be taken to have been familiar with the issue raised. It could not be suggested that there was a causal link between the petitioner not applying for civil legal aid in March 2011 and the previous refusals of A&A and special urgency cover. The petitioner had applied for civil legal aid in respect of the Inner House proceedings. That application had been refused on 12 October 2011 but it was not averred that the petitioner had sought review of that decision by the respondent in terms of section 14(3) of the Act and regulation 20 of the 2002 Regulations or otherwise challenge it and indeed he had not done so. Had he done so, the application would have been considered by a different officer of the respondent than that who had initially refused the application, as was required by section 14(3) of the 1986 Act and as had happened with the application for civil legal aid for the appeal to the Supreme Court. Where the petitioner had failed to exhaust available remedies by applying for review of the refusal of civil legal aid for the Inner House proceedings he could not apply for judicial review of that refusal in that judicial review was available only in the absence of an alternative remedy. As the respondent avers in answers 35 to 40, given that the petitioner's application for civil legal aid to appeal to the Supreme Court has been granted, no issue now arose in relation to the decisions refusing authority to exceed the financial limit as to the cost of A&A in respect of the Supreme Court proceedings. That civil legal aid had been granted for the appeal to the Supreme Court did not have the result that the refusal of previous applications was irrational. The material before the respondent in relation to the appeal to the Supreme Court was not necessarily the same as that which had previously been submitted. A different decision simply pointed to an openness of mind. In these circumstances, it was the contention of the respondent that the court should not entertain the petitioner's application for judicial review. Contrary to what appeared at statement 66 of the petition, there is no absolute right to civil legal aid, either as a matter of domestic law or as derived from EU law (cf S v Miller 2001 SC 977; Walton v Scottish Ministers 2011 SCLR 686, affirmed 2012 SLT 1211; P, C and S v United Kingdom [2002] ECHR 604, (2002) 35 EHRR 31; Airey v Ireland (1979) 2 EHRR 305) but, in any event, the petitioner in the present case has not been deprived of legal representation and the court is in a position to conclude that he has been able effectively to participate in the Outer House and Inner House proceedings. In the result there has been no infringement of his rights under article 6 of the European Convention or any cognate right under the Charter of Fundamental Rights. The claim for damages was irrelevant. As a matter of domestic common law, damages are not recoverable in respect of an ultra vires act. Admittedly, a human rights claim may raise different considerations. What is complained of at statement 60 of the petition is an unjustifiable interference with the petitioner's fundamental right of access to the court and, separately, the right to effective judicial protection and effective judicial remedies for breach of EU rights. In the circumstances there was no causal link between any decision of the respondent (or the manner in which any decision has been taken or articulated) and any loss or damage on the part of the petitioner. An oddity in the present case was that on the facts, and the matter was fact sensitive (cf McTear v United Kingdom, ECHR (App 40291/98), 7 September 1999, unreported), it was not obvious that there had been any interference with EU rights. Article 41(3) of the Charter dealing with damage caused by the EU's institutions has no application. The criteria for an award of Francovich damages against the respondent were not met: Franovich and Bonifaci v Italy [1991] ECR I-5357 at para 40; Schutze European Constitutional Law pp 399-400. In any event, any claim for damages would seem to be premature until the appeal to the Supreme Court had been determined. If the petitioner is successful in that appeal he will presumably obtain an award of costs. If he is unsuccessful that may be on the basis that he does not in fact have any EU right to vindicate. The damages claim was elusive: what exactly were the damages and whose damages were they? There was something wrong about the petitioner recovering damages from the respondent when he has secured the benefit of full representation on what had been described as a speculative basis. All that said, it was undesirable that an application for judicial review should be pursued solely or principally in order to recover damages for a breach of a Convention or cognate EU right: R (Greenfield) v Home Secretary [2005] 1 WLR 673 at 686, and Anufrijeva v Southwark London Borough Council [2004] QB 1124. It is unusual to get damages for breach of a public right. Just satisfaction, in the context of a Convention claim, does not require punitive or aggravated damages: Greens and MT v United Kingdom (2011) 53 EHRR 21. In the whole circumstances it was the respondent's contention, as focused by its second plea-in-law, that the petition being of doubtful utility, in the exercise of its equitable jurisdiction, the court should not grant any of the orders sought, et separatim should not allow these proceedings to proceed for the sole purpose of obtaining an award of damages. All of the petitioner's pleas-in-law should be refused other than plea-in-law 2 which might be upheld but only in relation to declarator.

[36] The respondent also insisted in its plea that the petitioner being barred by mora, taciturnity and acquiescence, the petition should be dismissed. The last decision in respect of any form of legal aid for the Outer House proceedings was made on 5 April 2011 and the last decision in respect of any form of legal aid for the Inner House proceedings was made on 12 October 2011. The present petition had been served on the respondent on 17 May 2012. The first intimation of an intention to bring an application for judicial review of the decisions of the respondent had been on 28 March 2011 when the petitioner's application for legal aid in respect of the present proceedings had been lodged with the respondent. Given his delay in presenting this petition, the petitioner should be taken as having acquiesced in the decisions now complained about and the application for judicial review should be refused on that account. Reference was made to Hanlon v Traffic Commissioners 1988 SLT 802, Devine v Moray Council 2002 SLT 213, Somerville v The Scottish Ministers 2007 SC 140, Simpson v Aberdeen Council 2007 SC 366 and United Cooperative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831.

Discussion
The matters arising and how they will be addressed

[37] I propose to address the various matters raised on behalf of the petitioner and the respondent as follows. Firstly, I shall consider the extent to which the impugned decisions were unlawful (insofar as this is not conceded on behalf of the respondent). Under that head I shall address the petitioner's contention that the decisions point to the existence of a secret policy in implementation of which the various applications were refused; the respondent's contention that the applications for special urgency cover were properly refused as relating to self-created urgency; the respondent's contention that the grant of civil legal aid for an appeal to the Supreme Court of the United Kingdom can be taken as superseding any question as to the lawfulness of the decisions to refuse to increase the limit for A&A in respect of that proposed appeal; the petitioner's contention that refusal of the applications relating to the Outer House and Inner House proceedings must be regarded as irrational given the subsequent grant of legal aid for proceedings in the Supreme Court; and the petitioner's contention that the respondent's decisions contravened the petitioner's right to legal aid as guaranteed and protected under article 47(3) of the European Union Charter of Fundamental Rights. Secondly, I shall consider whether, irrespective of the unlawfulness of the decisions, they are amenable to judicial review. Under that head I shall address the respondent's arguments on failure to challenge the decision to refuse the application for civil legal aid in respect of the Inner House proceedings and on mora, taciturnity and acquiescence. Thirdly, I shall consider the availability and utility, in all the circumstances, of the remedies sought by the petitioner but challenged by the respondent (reduction and damages) and therefore whether there is reason, in exercise of the court's equitable jurisdiction, not to grant all or any of them in respect of some or all of the impugned decisions.

Standing

[38] On behalf of the respondent, Mrs Wolffe drew attention to the fact that, despite the various decisions to refuse legal aid of which he complains, the petitioner has in fact obtained everything which grants of legal aid would have secured for him: representation by solicitor and by counsel in both the Outer House proceedings and the Inner House proceedings and a grant of civil legal aid to allow him to proceed with his appeal to the Supreme Court. The purpose of legal aid is to pay the fees of solicitors and counsel. Here solicitor and counsel have been prepared, thus far, to act if not gratuitously then at least on a speculative basis which would appear not to involve the petitioner in any cost. On one view it might be thought that his application had more to do with the protection of the interests of solicitor and counsel than those of the petitioner. Separately, Mrs Wolffe, on behalf of the respondent, described the claim for damages as fundamentally irrelevant. However the respondent does not present any challenge to the standing of the petitioner to present this application for judicial review. Indeed, the respondent goes further and concedes not only that the decisions of 22 March 2011, 25 March 2011, and 4 April 2011 refusing authority to exceed the financial limit as to the cost of A&A in respect of the Outer House proceedings (effectively all the Outer House A&A decisions) and the decision of 12 October 2011 refusing civil legal aid for the Inner House proceedings were unlawful, but also that the petitioner is entitled to declarator to that effect.

The first matter: the extent to which the impugned decisions were unlawful
The issues

[39] The petitioner is not content with a declarator in the terms which the respondent would concede. He wishes to pursue additional remedies, but as far as the terms of the declarator is concerned he wishes to include a finding that all the respondent's decisions (both those conceded to be unlawful by the respondent for error of law and inadequate reasons and those not conceded by the respondent to be unlawful) are unlawful as made in implementation of an undisclosed policy of the respondent contrary to the intent and purpose of the Act. The respondent denies the existence of any such policy and offers an affidavit as evidence of that. Mr O'Neill accepted that he had had sight of that affidavit but he rejected it as inadequate. He moved the court to order a second hearing, in terms of RCS 58.9(2)(b)(ix), with a view to giving him the opportunity to cross-examine the author of the affidavit on the issue of the existence of a policy not to grant legal aid in prisoners' voting rights cases or not to grant legal aid in such cases where a particular solicitor was instructed.

[40] Under the head of the unlawfulness of the impugned decisions, parties are therefore at issue as to whether or not they were all unlawful by virtue of the application of an undisclosed policy. They are at issue on whether article 47(3) of the EU Charter of Fundamental Rights confers a right which has been contravened. Additionally, the respondent disputes that the decisions made in respect of applications for special urgency cover were unlawful, it being its position that the circumstances relied on by the petitioner did not amount to circumstances which required a step to be taken "as a matter of special urgency to protect the applicant's position" as that expression is used in regulation 18(1) of the 2002 Regulations (the "self-created urgency" point). It further disputes that the decisions on the applications for authority to exceed the financial limit as to the cost of A&A in respect of the Supreme Court proceedings were unlawful ("A&A for the Supreme Court"). It disputes that the eventual grant of legal aid for the Supreme Court proceedings demonstrates that the refusals in respect of the Outer House and Inner House proceedings were irrationality. I shall take address self-created urgency, A&A for the Supreme Court and irrationality by reason of subsequent grant, before reverting to the questions of an undisclosed policy and contravention of an EU right, but first, in order to provide the background for the parties' respective contentions, I turn to the terms in which the more important examples of the various decisions were stated.

The terms of the impugned decisions

[41] The decisions attacked by the petitioner are contained in the on-line correspondence between the parties in relation to his various applications to the respondent. The correspondence is reproduced in statements 3 to 40 of the petition. As will already be apparent, that correspondence contains a significant number of items (I have counted 44 as being referred to in the petition). Some of the items are quite lengthy. Many are repetitive of what has gone before. While I do not propose to emulate the petition by repeating the terms of the whole of the correspondence, I would see it as necessary to quote from it fairly extensively in order to provide flavour and a context, particularly for the competing explanations as to why the respondent was in error, as the respondent would have it, in relation to some of the decisions and, as the petitioner would have it, in relation to all of the decisions. I begin by reproducing the correspondence in relation to the application for authorisation for an increased limit for A&A in the Outer House.

[42] Having made his initial application for A&A in relation to the Outer House proceedings on 1 March 2011 and been granted that on 2 March 2011, on the same day, 2 March 2011, the petitioner applied to the respondent for authorisation of an increased limit for that A&A of £350. The application of 2 March 2011 was in the following terms:

"Draft Increase

JR - Francovich

We have been consulted by the applicant who is an inmate in HM Prison Dumfries. He has been excluded from the franchise. He has requested of his local Electoral Registration Officer that he be admitted to the Electoral Roll. Correspondence has been received refusing that request. The Electoral Registration Officer considers himself bound by section 3(1) of the Representation of the People Act 1983. The Board have previously arrived at the view that there is no domestic remedy in respect of this matter, invoking Convention rights. Applications have been made to Strasbourg in this regard. However, this particular applicant is seeking a domestic remedy not under normal Convention machinery i.e. he does not invoke the Human Rights Act 1998 or the Scotland Act 1998. Each of those avenues has limitations. The Human Rights Act 1998 can only result in a declaration of incompatibility under section 4 of the Human Rights Act 1998. That has already been granted and notice has been given the UK Government about the incompatibility - Hirst v UK and Smith v Scott. The Scotland Act 1998 has no application given that there is no act of the Scottish Ministers. What this particular applicant seeks to do is to judicially review the decision of the Electoral Registration Officer and particularly his failure to respect EU law. The recent EU Charter has incorporated into EU law, Convention rights including Article 1 of Protocol 3. The blanket ban contained in section 3(1) of the Representation of the People Act 1983 has been held by the European Court of Human Rights to be in breach of this particular Convention right. That is the very piece of legislation invoked by the Electoral Registration Officer in correspondence to this applicant. In the circumstances the increase sought will facilitate the submission of an application for legal aid and a submission of an application for authorisation to commence specially urgent work. Under such an application a positive order against the Electoral Registration Officer will be sought. That cannot be met in the particular circumstances of this applicant by reliance upon section 6(2) of the Human Rights Act 1998. Any action conceived on the basis of the Human Rights Act 1998 against the Electoral Registration Officer would be met by such a stated defence. That defence is one that is not open to the ERO when the Human Rights Act 1998 is not availed. On the face of it there is no defence open to the State in these circumstances - this route means they must respect Convention rights. The increase sought will facilitate an attendance with the applicant, farming of a detailed precognition, marshalling of the paperwork and the submission of an application for legal aid. In the circumstances the increase sought is reasonable."

Although hardly material, I would understand "including Article 1 of Protocol 3" where it occurs after the reference to the incorporation of the Convention rights into EU law to be a typographical error. I take it that what was intended was "including Article 3 of Protocol 1".

[43] The application of 2 March 2011 was met with a refusal in these terms:

"Increase has been refused by SLAB for the reasons listed below. Your current expenditure limit remains at £95.00. Reason: 1. Legal aid has been granted for a case already before the Registration Appeal Court. It is not considered reasonable for any further increases to be made available in the circumstances as that case should deal with all issues in relation to prisoner voting."

To this the petitioner's agents replied on 11 March 2011 as follows:

"We refer to the above and your message of 8^th March 2011. You say that legal aid has been granted for a case before the Registration Appeal Court. We wonder whether this is an on-going case before the Registration Appeal Court or a reference to the case of Smith v Scott. If it is an on-going case could you provide us with details in order that we can in turn advise Mr McGeoch as to why he is being thwarted the right of access to legal advice? Of particular significance is the fact that the Board seem to arrive at a blanket view that 'all issues in relation to prisoner voting' should be dealt with by that case. The matter raised by Mr McGeoch is entirely novel. We are not aware of it being raised in connection with any other case. We look forward to hearing from you."

In reply, on 16 March 2011, the respondent advised:

"The increased reconsideration has been assessed and given a status of Refused by SLAB. Your current expenditure limit remains at £95.00. The reasons given for refusal at first instance are adhered to. It is not explained what the 'entirely novel' matter is."

On 18 March 2011 the petitioner's agents asked for reconsideration of the decision of 16 March 2011, advising the respondent as follows:

"We refer to the above and refusal of increase dated 8^th March 2011. We should be obliged if you would clarify the position. It is said that legal aid has been granted for a case already before the Registration Appeal Court. We are unsure as to whether there is a case presently before the Registration Appeal Court or whether the indication given is that there has already been a case before the Registration Appeal Court. In that latter event, the case would be Smith v Scott 2007 SC 345. Mr McGeoch does not seek to bring another challenge along similar lines to Smith v Scott to come out before the Registration Appeal Court. He seeks to invoke the supervisory jurisdiction of the Court of Session and to invoke the primacy of EU law. In the circumstances, Mr McGeoch considers it would be reasonable for him to be able to receive advice and to, at least, submit an application for legal aid with the benefit of advice and assistance. A blanket approach to deny a client the right to consult a solicitor in connection with 'all issues in relation to prisoner voting' notwithstanding the nature of that challenge is to be prima facie unreasonable. We look forward to hearing from you."

The respondent replied on 22 March 2011:

"The increase reconsideration has been assessed ad given a status of Refused by SLAB. Your current expenditure limit remains at £95.00. The previous refusal reasons are adhered to."

On 23 March 2011 the petitioner's agents again applied to the respondent for reconsideration as follows:

"We refer to the above and decision upon the increase of 22^nd March 2011. It is said that the novelty of the matter has not been explained. The novelty is the invoking of the primacy of EU law to seek a positive order against the Electoral Registration Officer to obtemper the obligations incumbent upon the Member State under and in terms of the EU law. We are unaware of any other case in which this has been granted in the context of a prisoner seeking inclusion on the Electoral Roll. We are unaware of any decision upon legal aid in connection with this subject matter. We would refer to the case of Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe 12 January [2010] ECR 1 and Zambrano v Office national de l'emploi (ONEM) copies of which are attached. If these are matters known to the Board and have appeared before the Courts they are not novel. We should be obliged if you would confirm your view upon this proposition."

The respondent replied on 25 March 2011:

"The increase reconsideration has been assessed and given a status of Refused by SLAB. Your current expenditure limit remains at £95.00. The previous refusal reasons are adhered to."

On 29 March 2011 the petitioner's agents again applied to the respondent for reconsideration as follows:

"We should be obliged if you would give consideration to reviewing your previous decision to adhere to the refusal to grant any authority in this case. We have made copious submissions in relation to the novelty of this matter and in relation to prospects of success. In the submission of Mr McGeoch the decision of 8^th March 2011, without warrant, fetters the Boards discretion. The Board is enjoined to consider the particular circumstances of each individual applicant. The decision of 8^th March 2011 adhered to does nothing of the sort. Despite the copious submissions seeking a review of this, no reasons have been proffered that evidence in Mr McGeoch's individual circumstances have even been considered. We look forward to hearing from you."

The respondent replied on 4 April 2011:

"The increase reconsideration has been assessed and given a status of Refused by SLAB. Your current expenditure limit remains at £95.00. It is not demonstrated that there is any need for additional judicial scrutiny of these issues."

[44] It was said by Mrs Wolffe on behalf of the respondent that in the course of the correspondence the petitioner's agents did not make it sufficiently clear to the respondent that the petitioner proposed to proceed with an application for judicial review on a basis that was different from contravention of the European Convention on Human Rights point which had succeeded (but with no consequent practical benefit) in Smith v Scott 2007 supra and Hirst v United Kingdom supra and that the respondent's error was accordingly understandable. That explanation might just be tenable if consideration is restricted to the petitioner's application on 2 March 2011. Something approaching the EU Ground is only very lightly touched on in the course a quite lengthy text discussing the limitations of other routes to a remedy. However, after a diversion of the correspondence into an exploration of what might be assumed to be an erroneous (at least as to a case being pending) reference by the respondent in its decision of 8 March 2011 to "a case already before the Registration Appeal Court", in his renewed application of 23 March 2011, with copies of the law reports attached, I would see that the petitioner had put sufficient before the respondent in sufficiently clear terms to indicate that the basis upon which he proposed to present a petition for review of the ERO was different from anything which had previously been propounded before a Scottish court. Essentially, the renewed application of 23 March 2011 was replied to with the single sentence: "The previous refusal reasons are adhered to."

[45] Notwithstanding what appeared in the petitioner's application for reconsideration of 23 March 2011, the respondent reiterated, on a further two occasions, on 25 March 2011 and 4 April 2011, its refusal by reference to the reasons previously given. The petitioner criticises the manner in which the applications to increase the authorised limit for A&A in relation to the Outer House proceedings are dealt with in the relevant series of decisions by the respondent, at 5.4 of his Note of Argument. I would see these detailed criticisms as being well-founded but a more general criticism is available: on the face of this early part of the correspondence, the respondent is simply not engaging with the points made on behalf of the petitioner. The same can be said about the terms of the respondent's response of 23 March 2011. That the points were not immediately understood may be excusable, that they were ignored is not.

[46] The next tranche of correspondence relates to the petitioner's application to the respondent for special urgency cover for the Outer House proceedings. By application dated 23 March 2011 the petitioner explained that he wished special urgency authorisation under regulation 18(1)(b) of the 2002 Regulations in order that a petition for judicial review could be prepared, lodged and intimated with a view to seeking first orders including an order ad interim ordaining the ERO to include the petitioner on the Electoral Roll. The full terms of the application are set out in statement 13 of the petition. In answer 13 the respondent advances its contention by way of averment that, properly construed, the purpose of regulation 18(1)(b) is not to deal with circumstances such as those described in the application of 23 March 2011, which the averments characterise as relieving the applicant of the consequences of failing timeously to submit and progress an application for civil legal aid or other instances where, generally, the urgency does not arise by some external factor or the conduct of some third party over whom the applicant has no control. This is what may be paraphrased as the "self-created urgency" (an expression used by the respondent) argument to which I shall have to return but, for present purposes, I would observe that the respondent did not initially deploy the "self-created urgency" argument (or, indeed, in any obvious way apply itself to the statutory criteria provided by regulation 18(1)(b), a point made at paragraph 5.5(a) of the petitioner's Note of Argument) but, rather, on 24 March 2011 the respondent refused the application in these terms:

"I am sorry to have to tell you that after careful consideration we have decided to refuse this request for the following reasons: The Board is currently considering an application that will be the lead case on this matter and will clarify all matters in relation to voting. It is unreasonable for further applications to be granted in the circumstances."

[47] The petitioner did not accept this refusal. On 28 March 2011, with an additional upload of a note, a precognition and advice from senior counsel later on the same day (necessitated by its omission from the application), the petitioner applied afresh to the respondent for special urgency cover. This application was in very full terms. It reiterated what the petitioner regarded as the relevant special circumstances. It attacked the respondent's failure to address the statutory criteria in regulation 18(1)(b). It responded to the respondent's assertion in its refusal of 24 March 2011 that it was "currently considering an application that will be the lead case on this matter and will clarify all matters in relation to voting." It concluded with observations, under reference to the decision of the European Court of Justice of the European Union in DEB Deutsche Energiehandels und Beratungsgesellschaft mbH v Germany [2011] 2 CMLR 9, on the respondent fettering its discretion to deal with individual applications on their terms. On 28 and 29 March 2011 the respondent maintained its refusal. The decision of 28 March 2011 was in these terms:

"I am sorry to have to tell you that after careful consideration we have decided to refuse this request for the following reasons: The previous reasons for refusal have not been addressed. It has in any event not been shown that the work proposed cannot await the outcome of the civil legal aid application."

The decision of 29 March 2011 was in these terms:

"I am sorry to have to tell you that after careful consideration we have decided to refuse this request for the following reasons: The Board does not consider that it is likely that the case would be heard in advance of the upcoming election. The applicant can await the decision on the full legal aid application. In any case, this issue was considered before the 2007 election in the cases of Traynor, Birrell and Fisher. It is not clear that the court is likely to come to a different conclusion here."

[48] The petitioner applied for reconsideration of this refusal on 30 March 2011 (two applications), again on 31 March 2011, and again on 4 April 2011. In response to these applications for reconsideration, the respondent maintained its refusal respectively on 30 March 2011 (two responses), 1 April 2011 and 5 April 2011. In the petitioner's first application of 30 March 2011 he addressed, again at some length, the distinctions that he would draw as between his case and those of Traynor, Birrell and Fisher which had been cited in the respondent's decision of 29 March 2011 (that the respondent had referred to the cases of Traynor, Birrell and Fisher would suggest not just that it persisted in a belief that the petitioner was seeking simply to found on the European Convention of Human Rights but that it still had not really applied itself to what the petitioner's case was about). The respondent's first decision of 30 March 2011 was the first to explain the reason for refusal in terms of self-created urgency. It was in these terms:

"I am sorry to have to tell you that after careful consideration we have decided to refuse this request for the following reasons: It is considered that any urgency arising here is entirely self-created. The decision in the Hirst case was promulgated some considerable time ago. The date of the elections has been known for some time. A court hearing has been fixed in the absence of a positive decision from the Board in relation to the availability of SU4 cover for same. It is not reasonable for this matter to be progressed under special urgency cover where the Board has not been afforded the opportunity to consider the full application against the relevant statutory tests. It is considered that the outcome of the legal aid application can be awaited."

In the petitioner's second application of 30 March 2011 he set out, at even greater length than before, why in his view, a provisional view could be arrived at on probabilis causa litigandi. By this time a petition had been lodged with the court and a copy was enclosed, together with a note of advice from counsel, a precognition and supporting material and copies of the previous applications for special urgency cover. Given that the petition had been prepared, it was clarified that special urgency cover was required to instruct Edinburgh agents, to instruct counsel for what was described as an interim hearing and to seek a sist for legal aid. In response, the respondent intimated its second decision of 30 March 2011. The reasons for refusal were stated as being: "The previous reasons have not been adequately addressed and it has not been shown that the urgency is not self-created." There then followed a repetition of what had appeared in the first decision of 30 March 2011.

[49] It is appropriate to quote the petitioner's application of 31 March 2011 in full:

"We refer to the above and your letter of 30^th March 2011 advising of the outcome of our further application for special urgency cover. We note that this was refused 'after careful consideration'. The decision letter repeats the previous decisions letter's reasons for refusal. On its own, the decision letter simply says that the previous reasons have not been adequately addressed and 'it has not been shown that the urgency is not self-created'. We think this is to invert the onus. It is not incumbent upon us as solicitors, or indeed upon Mr McGeoch as the applicant, to have to negate reasons proffered by the Board as to why it is said that special urgency cover ought not to be granted.

We have repeatedly in the exchange of communication between us highlighted that there has been no proper engagement by the Board with the challenge to be made on behalf of Mr McGeoch. The issues that are the kernel of the application to the Court have not been addressed by the Board in connection with any of the applications for special urgency. This has been said repeatedly. Can this now be addressed? Rather, especially latterly, there appears to be a focus upon the conduct of the applicant and, perhaps, solicitors and Counsel. The last decision letter with one sentence of reasons puts an onus upon the applicant to demonstrate why 'the urgency is not self-created'. We have had regard to Regulation 18. The reason why the urgency of the situation arises does not appear to be a relevant factor. The urgency of the situation does. The significance of the matter raised for the applicant's position was clearly a relevant factor. No reasons have been produced to us which demonstrate that the Board has assessed the significance of the matter for Mr McGeoch and the necessity of protecting his position by the institution of proceedings. No reasons have been produced which demonstrate an understanding of the challenge and, consequently, there has been a failure to weigh the gravity of the challenge and the prospects of success. Instead, especially latterly, the Board has focused upon, exclusively it would appear as a reason for refusal, the allegation that the urgency is self-created. The 'self' in this regard would appear to be Mr McGeoch. The urgency of the situation appears to relate to temporal considerations. Scottish parliamentary elections will take place on 5^th May 2011. Nothing in Mr McGeoch's challenge will interfere with that. The sound administration of the poll is not doubted. The other temporal matter is that the Electoral Registration Officer will close off consideration for inclusion on the Electoral Roll on 15^th April 2011. We have previously, on behalf of numerous clients; sought authority from the Scottish Legal Aid Board to progress matters domestically. The Board has consistently and constantly refused any increases in authorised expenditure.

Now Mr McGeoch is being punished for not taking the challenge at some point in advance of this moment in time. We have sought to explain the position in some detail with reference to the recent decision - 8^th March 2011 - of the Court of Justice of the European Union. The reasons proffered by the Board, especially latterly, do not say why the recent decision of the Court of Justice of the European Union is not to be regarded as a weighty matter which changes the legal landscape and, consequently, allows this application to be stated before the Court.

If the Board are simply going to refer to previous reasons and allege that these have not been adequately addressed, perhaps they would advise why the recent decision of the Court of Justice of the European Union is not to be regarded as a relevant factor in this regard. Perhaps they would also illuminate Mr McGeoch as to why the previous applications and the explanations in respect of the previous refusal letters are not to be regarded as adequate. In the circumstances, we renew herewith our application on behalf of Mr McGeoch for SU cover. We should be obliged if you would give consideration to SU cover for:

1. Instruct Edinburgh agents

2. Attend a continued interim hearing

3. Seek sist of the cause

The Petition has been lodged. The interim hearing has commenced. Lord Tyre has invited submissions on a reference to the CJEU. He has asked the UK Government if they wish to have built into any timetable of further procedure provision for the possibility of an appeal should he find in favour of the petitioner. The hearing has been continued to 7^th April 2011. We would ask that the Board take into account:

1. Precognition and supporting material

2. Special urgency application of 23^rd March 2011

3. Special urgency application of 28^th March 2011

4. Special urgency application of 29^th March 2011

5. Special urgency application of 30^th March 2011

6. Petition for Judicial Review."

That was met by the respondent's decision of 1 April 2011 in these terms:

"Thank you for your application of 31 March 2011 in which you asked for special urgency cover under regulation 18(1)(b). I am sorry to have to tell you that after careful consideration we have decided to refuse this request for the following reasons: It is not entirely clear that an application under regulation 18(1)(b) is appropriate given that agents are seeking to sist the cause. However, if agents are seeking to attend the continued hearing on 7 April 2011, we adhered to our previous reasons for refusal as indicated in our correspondence of 30 March 2011. It is considered that the outcome of the legal aid application can be awaited."

The petitioner's renewed application of 4 April 2011, made prior to what had been fixed as a continued hearing before Lord Tyre on 7 April 2011, was refused by decision of 5 April 2011, essentially in the same terms as the decision of 1 April 2011.

[50] The next tranche of decisions complained about by the petitioner were those refusing his applications for special urgency cover in respect of the Inner House proceedings to reclaim against the decision of the Lord Ordinary which had been issued on 8 April 2011 (and thus in advance of the Scottish Parliamentary Election to be held on 5 May 2011). The applications were made on 14 April 2011, 9 May 2011, 11 May 2011, 24 June 2011, 29 June 2011, and 4 July 2011. The respective refusals were intimated on 10 May 2011, 11 May 2011, 24 June 2011, 29 June 2011, and 6 July 2011. The decision to refuse of 29 June 2011 was on the basis that the application was made in respect of an item of work (the lodging of a joint list of authorities) which should have been carried out prior to the application being made. Otherwise the decisions all relied on the concept of self-created urgency. The decision of 10 May 2011 was in these terms:

"Thank you for your application of 9 May 2011 in which you asked for special urgency cover under regulation 18(1)(b). I am sorry to have to tell you that after careful consideration we have decided to refuse this request for the following reasons: The first special urgency request was submitted on 2 March but no legal aid application has been registered since that date. It is considered that had an application been registered on 23 March or soon thereafter than a decision on the full application could have been taken. The Board considers that this is a self-created urgency."

A similar position was intimated on 11 May 2011 (notwithstanding that a civil legal application appears to have been lodged in the interim) thus:

"Thank you for your application of 9 May 2011 in which you asked for special urgency cover under regulation 18(1)(b). I am sorry to have to tell you that after careful consideration we have decided to refuse this request for the following reasons: It is noted that a civil application has now been lodged but we adhere to our previous view that this is a self-created urgency."

In its decisions of 24 June 2011 and 6 July 2011, the respondent adopts previous reasons for refusal and, as it would appear, explains self-created urgency by reference to delay on the part of the petitioner's agents in progressing an application for civil legal aid. Although this point is not taken by the petitioner in the relevant part of his Note of Argument (paragraph 5.6), a curiosity of the terms of the respondent's decision of 10 May 2011 (adopted in subsequent decisions) is that the respondent founds on the failure of the petitioner to lodge an application for civil legal aid in respect of the Outer House proceedings whereas the application of 9 May 2011 to which the decision of 10 May 2011 was the response, was in respect of the Inner House proceedings. I take the explanation to be that the officer of the respondent who considered the application of 9 May 2011 did not appreciate that the application was in respect of a proposed reclaiming motion against the Lord Ordinary's decision of 8 April 2011. Looking to the terms in which the application of 9 May 2011 was made that may not be entirely surprising.

Regulation 18 of the 2002 Regulations and "self-created urgency"

[51] The petitioner criticises the decisions of the respondent on the petitioner's applications for special urgency cover, relying on regulation 18 of the 2002 Regulations, in respect of the Outer House proceedings at paragraph 5.5 of his Note of Argument and in respect of the Inner House proceedings at paragraph 5.6. In his oral submissions Mr O'Neill pointed out that there is nothing in the text of regulation 18 to indicate that "self-created urgency" was a ground of refusal. The respondent, he submitted, had misdirected itself by concentrating on the supposed "why" steps had to be taken as opposed to the "that" steps had to be taken. Mrs Wolffe sought to support the "self-created urgency" ground where it was relied on by the respondent, but otherwise did not challenge the propositions advanced in paragraphs 5.5 and 5.6.

[52] As is indicated above, in terms of section 14 of the Act civil legal aid shall be available to a person who makes an application as provided for by regulation 5 of the 2002 Regulations, if the respondent is satisfied that he has probabilis causa litigandi and it appears to the respondent that it is reasonable in the particular circumstances of the case that he should receive legal aid. However, the Regulations recognise that a person seeking legal aid may need to take steps in order to protect his position which require representation by a solicitor and, where appropriate, counsel in proceedings, including proceedings in the Court of Session, before his application for civil legal aid has been determined. Provision is made for such circumstances by regulation 18 of the 2002 Regulations.

[53] As appears from regulation 18(3) and (4) and as was emphasised by Mrs Wolffe, whether legal aid is made available by virtue of regulation 18(1)(a) or (b), the solicitor must submit an application for civil legal aid in terms of regulation 5 within 28 days of commencement of the relevant work. Failure to do so will result in exclusion of work done 28 days prior to the application from any legal aid that may be made available. The petitioner did not apply for civil legal aid in respect of the Outer House proceedings. He did not apply for civil legal aid in respect of the Inner House proceedings until 24 June 2011. Thus, submitted Mrs Wolffe, only work which was in relation to the reclaiming motion and was done no earlier than 28 days prior to 24 June 2011 could have benefited from special urgency cover and, she noted, there was nothing in the petition to indicate that work had in fact been done within the relevant time-frame. Mrs Wolffe acknowledged, however, that this point and her more fundamental objection to reduction of the respondent's decisions, that under the scheme established by the Act and the Regulations did not empower the respondent to make retrospective awards of legal aid, anticipated her argument that this application for judicial review lacked utility.

[54] Mrs Wolffe did not much elaborate on her submission that for the purposes of regulation 18, urgency could not be relied on if it were self-created, beyond referring to what appeared at Answer 13. There it is averred

"the principal issue in the determination of applications for special urgency cover under regulation 18(1)(b) of the 2002 Regulation was that the Board is 'satisfied ... that steps require to be taken as a matter of urgency to protect the applicant's position'. The provision for special urgency cover is not intended to relieve an applicant of the consequences of failing timeously to submit and progress an application for civil legal aid or other instances where, generally, the urgency does not arise by some external factor or the conduct of some third party over whom the applicant has not control. Generally, in considering such applications the Respondents take into account the whole surrounding circumstances. It is undesirable for public funds to be committed to expensive proceedings where the Respondents have not had the opportunity to consider whether an application for civil legal aid is likely to meet the statutory tests. Nor is the provision of special urgency cover intended to enable an applicant to elide the consequences of not being able to satisfy the requirements for civil legal aid."

Sound as these points may be, in the generality, I do not see the decisions of the respondent which refer to "self-created urgency" (an expression which, as I have already noted, appears to have been first used in a decision dated 30 March 2011 and which, as Mr O'Neill submitted, does not appear in the regulations) as being fair applications of the facts to the terms of the statutory provision. What the respondent appears to have meant when using the expression was that the petitioner had been tardy in making his application for judicial review given the date of the decision in Hirst v United Kingdom supra, and the fact that the date of the election to the Scottish Parliament (5 May 2011) had been known for some time. It therefore seems to have been accepted by the respondent that steps aimed at securing inclusion of the petitioner's name in the Register of Local Government Electors could be regarded as "steps ...to protect the applicant's position" in terms of regulation 18(1)(b). That being so, the relevance of date of the decision in Hirst and when the date of the election became known is somewhat elusive, at least where, as was the case here, the petitioner had applied to the ERO for his name to be included in the Register of Local Government Electors as early as 5 November 2010, had had his application refused by letter dated 11 February 2011, had applied for A&A in relation to his raising a petition for judicial review on 1 March 2011, had the first of a number of applications for authorisation of an increase in the A&A limit refused on 8 March 2011 (for a reason that I take to be factually inaccurate) and had made his first application for special urgency cover on 23 March 2011. If the respondent's point was that there had been undue delay on the part of the petitioner, then in my opinion the respondent did not have the material on which to come to such a conclusion. I share Mr O'Neill's difficulty in understanding what, in the circumstances, is meant by "self-created". At this point I must acknowledge that in looking at particular instances of the respondent's decision-making in this case, whether in relation to special urgency cover or otherwise, it is impossible to ignore the generality of the respondent's decision-making. This is a point to which I will shortly return in relation to the petitioner's submission that the inference to be drawn from the whole series of decisions is that the respondent was operating an undisclosed policy the object of which was to deny legal aid either in respect of this class of case, to this petitioner or to this petitioner's legal representatives. However, for present purposes I would admit to having come to adopt a critical and sceptical approach to each individual decision by the respondent because of the number of errors, some conceded by Mrs Wolffe, some not defended by her, which are evident when the whole series of decisions is considered. Returning then to the special urgency applications, in my opinion the respondent was not entitled to refuse them on the basis that they were "self-created", whatever precisely that may mean. The reasons given in the various decisions relating to the applications, both in respect of the Outer House and the Inner House proceedings, do not suggest that the respondent was applying itself to the terms of regulation 18 in the light of the information provided to it on behalf of the petitioner in any reasonable sort of way. I would hold these decisions to be made in error of law.

Authority to exceed the financial limit for A&A for proposed appeal to the Supreme Court

[55] Again I did not hear much in the way of argument on what, on any view, was a very minor aspect of the case. The petitioner's position is set out in para 5.8 of the Note of Argument. As I understood her, Mrs Wolffe, on behalf of the respondent contented herself with the submission that now that legal aid had been granted for the substantive proceedings in the Supreme Court, the petitioner's complaint about the refusals of authority to exceed the financial limits applicable to work necessary to make the applications for legal aid, was superseded. I admit not to have followed whether this was because the petitioner could not be said to have suffered any prejudice in that he had secured a grant of legal aid for the Supreme Court or whether it was because the work done in applying for legal aid would necessarily be covered by the grant. Neither of these considerations bears on the legality or otherwise of the decisions. While I cannot conclude that the respondent was not entitled to look for further information as at 14 December 2011 and 16 January 2012, I consider that the decision of 14 February 2012 is marred by a repetition of the error of law as to the basis of the EU Ground and, at least on the petitioner's approach what remedy might be available. I therefore hold the decision to be unlawful.

Irrationality given the subsequent grant of civil legal aid for the Supreme Court

[56] Mr O'Neill argued that the respondent's decisions refusing the applications relating to the Outer House and Inner House proceedings can be seen to have been irrational and therefore unlawful, in that by determining to grant the petitioner civil legal aid in order to appeal to the United Kingdom Supreme Court the respondent demonstrates that (a) the petitioner had probabilis causa litigandi in an application for judicial review of the ERO's decision and (b) it is reasonable that the petitioner should receive civil legal aid.

[57] As indicated above, I accept that there were deficiencies in the respondent's various decisions which rendered them unlawful. That the respondent has now granted legal aid for the appeal to the Supreme Court may reflect some acknowledgement of that but, in my opinion, simply because a later decision is inconsistent with or contradictory of a previous decision does not, of itself, mean that the previous decision was irrational. I accept Mrs Wolffe's submissions on this point.

Undisclosed policy

[58] The petitioner's perhaps most important submission was that the inference to be drawn from the whole series of decisions which he seeks to bring under review is that the respondent was operating an undisclosed policy, the object of which was to deny legal aid in respect of this particular class of case, or to this particular petitioner or to this petitioner's particular legal representatives. True, the respondent has made a grant of legal aid in respect of the particular case, to the particular petitioner, as represented by his particular legal representatives, but only after the presentation of this petition for judicial review, something Mr O'Neill ascribed to the fact of the presentation of this application for judicial review.

[59] The respondent, on the other hand, concedes error in failing to understand that the petitioner's application for judicial review was not simply identical to other prisoner voting rights cases which had been previously litigated on the basis of contravention of the European Convention on Human Rights, but attributes this error to a failure on the part of the petitioner, through those representing him, clearly to explain his proposed case.

[60] Thus, there is no dispute but that the respondent had been wrong (although Mrs Wolffe did not accept that the respondent had been quite so persistently wrong as Mr O'Neill had submitted and I have found it to be). The dispute was as to whether this, on the one hand, was deliberate (and therefore, although the word was not used, the result of malice), or, on the other, inadvertent (and the result of understandable mistake).

[61] I have come to reject Mrs Wolffe's explanation for the respondent's failures. As I have already indicated, the petitioner had made his contentions very clear, if not on 2 March 2011 then on 23 March 2011 and again, at some length, on 28 March 2011. That is not to say that the task of understanding and evaluating these contentions was straightforward. I acknowledge that even a highly qualified and experienced lawyer might be unfamiliar with the concepts involved in the petitioner's EU Ground. They raise matters with which I would imagine few Scottish lawyers would claim familiarity. I would not claim any such familiarity myself. However, I do not consider that unfamiliarity of subject matter absolves the respondent's officers from making such inquiry as is necessary to understand entirely comprehensible material that is submitted to the respondent in support of an application. I acknowledge that the statutory duties of the respondent are demanding. No doubt the resources available to discharge them are limited. Mrs Wolffe advised me that not all of the respondent's officers are legally qualified. That is unsurprising. Efficient administration requires delegation and not every decision which the respondent has to make will require high-level legal skills. However, none of this excuses the respondent from its corporate responsibility appropriately to address all applications made to it. Where the subject matter of an application is unfamiliar or where it raises difficulty in the exercise of discretion then a system has to be in place to accommodate such problems. The powers exercised by the respondent are, as Mr O'Neill emphasised, important. The standards to be expected in the exercise of these powers are correspondingly high. For the reasons that I have already outlined, it cannot be said that these standards have been met in the present case.

[62] If Mrs Wolffe's explanation is to be rejected, what of Mr O'Neill's? Mr O'Neill urged me to draw a sinister inference from the way in which the respondent dealt with the petitioner's repeated applications: that there was an undisclosed policy in place, the effect of which was to ensure that applications of this nature or coming from this source were not granted. He relied on the apparent wilful blindness to what appeared in the material provided by the petitioner, the repeated refusals of applications without good reasons being provided and what he described as an absence of candour in the terms of the respondent's answers to the petition.

[63] Although the vehemence with which they were advanced initially rather obscured this, on reflection I see there to have been force in Mr O'Neill's submissions. However, having reviewed these submissions, I do not consider that the material before me justifies the inference which Mr O'Neill urges me to draw. Nor does it justify me in taking the step which Mr O'Neill proposes, that is the fixing of a second hearing in order that his assertion that there is an undisclosed policy in place be explored by the leading of evidence. What Mr O'Neill is alleging here is that the respondent has behaved both maliciously and mendaciously. That is not an inference to be drawn lightly, certainly not where there is a more probable explanation for what occurred. I consider that there is a much more probable explanation, albeit not one which commended itself either to Mr O'Neill or Mrs Wolffe. The inference that I draw from everything put before me is that the respondent's errors were much more likely to be the result of ignorance and incompetence; ignorance and incompetence in the sense that decisions on what were quite complex applications relating to an as yet unexplored area of the law were made by persons who (understandably) did not have the necessary level of skill and experience to do so, and who, no doubt for the very same reasons, were unwilling to reconsider previous decisions or to refer the applications to those who had the necessary skill and time to give them proper consideration. Indeed, I have a suspicion that the respondent's officers may have felt overwhelmed by the torrent of scholarship emanating from the petitioner's advisers (a feeling with which I would have sympathy). Had the respondent, when faced with this petition, been prepared freely to concede as much, it would have been less susceptible to Mr O'Neill's charge of lack of candour. The adversarial nature of litigation may militate against this, but a public authority should be prepared to admit its mistakes, embarrassing, as it may be do so. In fairness to the respondent, it did concede certain errors but, by explaining them by reference to lack of clarity in the petitioner's applications and taking points on failure to exhaust remedies and mora, the respondent has made its concessions appear rather grudging.

[64] In coming to the decision that I have on what I recognise is a key element in the petitioner's case, I am conscious that I may be seen to have been deaf to what Mrs Wolffe described as Mr O'Neill's "passion" as to the nature of judicial review and its function in promoting good administration and respect for the rule of law. I am also aware that my approach to the issue by considering what I am prepared to infer from the pleadings and correspondence is not that urged on me by Mr O'Neill, he wishing to explore the matter of an undisclosed policy by the leading of evidence. I am not however prepared to fix a second hearing for that purpose. I agree that administrative bodies should be prepared to explain their decisions candidly and when they fail to do so, it may be appropriate for the court to require that to be remedied. I agree that judicial review is an essentially summary procedure where highly developed pleadings should be unnecessary. The individual when faced by the state is likely to be at a disadvantage when it comes to the availability of information. Nevertheless when, as here, a very serious allegation is made against a public body, involving not just error but malice compounded by mendacity, I would look for it to be supported by more specific information and more pointed averments than I have found here.

[65] Thus, I am not prepared to infer the existence of an undisclosed policy and I am not prepared to order a second hearing for the purpose of further exploring whether such a policy may exist.

Article 47 (3) of the European Union Charter of Fundamental Rights

[66] The petitioner contends that there has been a contravention of his rights which are guaranteed by article 47 (3) of the Charter, the same instrument by virtue of articles 39 and 40 whereof, which the petitioner relies on as guaranteeing his right to vote. As I understood the contention, the existence of the article 39 and 40 right is of importance in giving content to the article 47 (3) right in that it is because, on the petitioner's approach, articles 39 and 40, as part of the law of the European Union, guarantee a right, that article 47 (3) is engaged to allow the petitioner to vindicate it.

[67] Article 47 is the first article in Chapter VI of the Charter, that chapter being headed "Justice". It is in the following terms:

"47. Right to an effective remedy and to a fair trial

(1) 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.

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

(3) Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."

[68] Mr O'Neill's argument was straightforward. The petitioner by his application for judicial review of the ERO's decision was attempting to establish that his rights under EU law have been violated. The right to legal aid under Article 47 of the Charter applies equally to when a person is attempting to establish that his rights under EU law have been violated as to when a person has shown that those rights have been violated. Given the complexity of the legal issues involved in that application, it was necessary to ensure effective access to justice that he be represented by solicitors and counsel. He lacked sufficient resources to pay their fees. Therefore it was necessary that he receive legal aid. He has been refused legal aid. Therefore there had been a violation of the petitioner's rights under EU law because of the respondent's decisions. The violation was not cured by the fact that, in response to a situation created by the respondent, agents and counsel had agreed to act for the petitioner before the Court of Session on what Mr O'Neill described as a speculative basis.

[69] In reply to these contentions Mrs Wolffe submitted that there was no question of the petitioner having been denied access to justice or being at risk of being denied access to justice and, indeed, the petitioner had made no attempt to plead himself into the condition "necessary to ensure effective access to justice". Moreover, contrary to what appeared at statement 66 of the petition, there is no absolute right to civil legal aid, either as a matter of domestic law or as derived from EU law (cf S v Miller supra; Walton v Scottish Ministers supra; P, C and S v United Kingdom supra; Airey v Ireland supra).

[70] Mrs Wolffe's proposition that there was no absolute right to civil legal aid was based on cases where what was under consideration was the entitlement to a fair hearing of any determination of a person's civil rights and obligations by an independent and impartial tribunal established by law, as guaranteed by article 6(1) of the European Convention of Human Rights. There is no specific mention of a right to civil legal aid in the Convention. That is clearly not the case with the Charter. Moreover article 52(3) of the Charter provides:

"In so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection."

[71] Thus, the Charter specifically allows for the possibility that the rights it confers, while corresponding to rights guaranteed by the Convention, might be more extensive than the equivalent Convention rights. Mr O'Neill therefore was fully entitled to submit that article 47 of the Charter was not another name for or incarnation of article 6 of the Convention. It does not however follow, contrary to what I understood Mr O'Neill to assert, that the Charter confers a right to legal aid which can be taken to have been contravened simply because an applicant who wishes to vindicate what he claims are his rights under EU law has had his application for legal aid refused. Guidance can be had from the decision of the second chamber of the European Court of Justice on a reference from the Kammergericht Berlin in Case C‑279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Germany supra.

[72] As recast by the Court of Justice, the question referred in DEB was whether the principle of effective judicial protection as enshrined in Article 47 of the Charter precluded a national rule under which the pursuit of a claim before the courts was subject to the making of an advance payment in respect of costs and under which a legal (as opposed to natural) person did not qualify for legal aid even though the legal person was unable to make that advance payment (it being recognised by the Court that legal aid might cover both court fees and the cost of legal representation). The Court noted that the Charter had, in terms of article 6(1) of the Treaty of the European Union, the same legal value as the Treaties and that, as provided by article 51(1) of the Charter, its provisions were addressed to the Member States when they were implementing EU law. However, no indication was given in article 47(3) as to whether legal aid must be granted to a legal person or of the nature of the costs covered by that aid. While noting the absence of a truly common principle shared by the Member States in relation to the award of legal aid to legal persons, after a review of the case-law of the Strasbourg court, the Court of Justice concluded, at para 59, that the principle of effective judicial protection, as enshrined in Article 47 of the Charter, must be interpreted as meaning that "it is not impossible" for legal persons to rely on that principle and that legal aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer. However, it was for the national court (by which I take to include the national legal aid authority) to ascertain whether the conditions for granting legal aid constituted a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve. In making that assessment, the national court must take into consideration the subject-matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the applicable law and procedure; and the applicant's capacity to represent himself effectively. In order to assess proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts. The Court of Justice observed that while the context of any right conferred by the Charter is the implementation of EU law by a Member State, in relation to provision for legal aid, the national courts had to strike a fair balance in order to ensure that applicants relying on EU law have access to the courts, but without favouring such applicants over others.

[73] What I take from DEB in the context of the present case is that the effect of article 47(3) of the Charter is to require of a Member State that a scheme for the provision of legal aid be available in order that persons (whether natural or legal) have the possibility of a grant of the necessary financial assistance to allow them to vindicate their rights under EU law. However, it is for national authorities, under the supervision of the national courts, to determine the conditions, consistent with proportionality, under which legal aid may be available in a particular case. Nothing that I have found applicable in the present case in my opinion constitutes a contravention of what I conceive to be the article 47(3) right. A simple refusal of an application for legal aid in respect of litigation to vindicate an EU right does not constitute such a contravention and that is so even where the decision-making process leading to such refusal is flawed by, for example, error of law. It would be different were there to be some sort of systematic barrier to the provision of legal aid. I can see that were it to be established that the respondent had in place a policy which absolutely precluded the grant of legal aid in relation to litigation in an area where the United Kingdom was implementing (or should be implementing) EU law, then article 47(3) might be said to be being contravened but that is not what I consider to be the case here. Accordingly I do not consider that the petitioner is entitled to declarator that such right as he has by virtue of article 47(3) has been contravened.

The second matter: the amenability of the impugned decisions to judicial review
Failure to challenge the decision to refuse the application for civil legal aid in respect of the Inner House proceedings

[74] The respondent takes the point that is specific to the decision of 12 October 2011 to refuse civil legal aid in respect of the Inner House proceedings: because the petitioner did not avail himself of the procedure afforded by the respondent for reviewing that decision, as provided for by section 14 (3) of the Act and regulation 20 of the 2002 Regulations and therefore did not exhaust the remedies open to him in terms of the scheme operated by the respondent, it is not open to him to apply for judicial review. This is an appeal to the principle which is identified by Clyde and Edwards Judicial Review at p 409 in these terms:

"As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant. One example of this is where there is a contractual remedy open to the complainer. But the matter of alternative remedies has usually arisen in relation to the provision of statutory remedies ...Where a particular remedy is provided the general rule is that it must first be pursued. This rule is recognised by Lord Kames when he observed that 'it is the province, one should imagine, of the sovereign, and supreme court, to redress wrongs of every kind, when a peculiar remedy is not provided'. One may not neglect a statutory remedy and jump directly to the Court of Session. Indeed, if the alternative statutory remedy is more suitable to the nature of the case and sufficiently obviates the risk of wrong or abuse, it may be exclusive or final. The principle may be thus expressed in terms of an implied exclusion of the court, so that it can be said that where a statute provides an alternative method of review there is an implied exclusion of the jurisdiction of the Court of Session."

[75] The petitioner's rejoinder to this line of argument is focused at paragraphs (16) and (17) of his written Response. There is, according to the petitioner, no alternative effective remedy. The respondent has failed, so the petitioner submits, to produce any regulation or procedure for review of its refusal of legal aid. That assertion, as the petitioner immediately recognises, must be very radically qualified. Section 14(3) of the Act imposes on the respondent a duty to establish a procedure under which any person who has been refused legal aid may apply to the respondent for review of his application. That much is clear, as are the terms of regulation 20 of the 2002 which impose certain requirements for an application for review. Paragraph 1.21 of the Scottish Legal Assistance Handbook is headed "Review of refusal of legal aid". Its terms paraphrase section 14(3) and regulation 20. It includes the sentence: "Under section 14(3) of the Act we have to have a procedure so that anyone whose application has been refused may apply to us for a review of the decision." Admittedly, the paragraph refers to the respondent's obligation to have a procedure in place rather than confirming that it does in fact have a procedure in place or explaining what the procedure is (other than in relation to what the applicant must do). However, a reasonable reading of what appears in the Handbook is that the respondent does have a review procedure and that applicants are being advised of the fact. Mrs Wolffe confirmed that there is such a procedure, albeit in the form of a legally qualified officer of the respondent reconsidering the decision of a colleague.

[76] As appears from a consideration of chapter 12 of Clyde and Edwards, the availability of an alternative remedy will not inevitably exclude an application for judicial review: and see Watt v Strathclyde Regional Council 1992 SLT 324 at 332G. If what is advanced as an alternative remedy is to exclude judicial review, it must be a remedy and it must be effective. What is in issue here is not as such a distinct remedy provided by statute; it is a purely administrative procedure whereby one officer reconsiders the decision of another officer. I question whether such a procedure comes within the parameters of the general proposition identified by Clyde and Edwards, at least given the circumstances of the present case; it certainly does not amount to "neglect[ing] a statutory remedy and jump[ing] directly to the Court of Session".

[77] While a possible outcome of a request on behalf of the petitioner for review of the refusal of civil legal aid for the Inner House proceedings would have been a grant, the second, favourable, decision would have had no formal impact on the (ex hypothesi, unlawful) first refusal. Moreover, in the present case there was an established history of defective decision-making by presumably more than one of the respondent's officers. The petitioner might be forgiven for having little confidence in a review by another one of such officers. I do not see this as a case where judicial review should be held to be excluded.

Mora, taciturnity and acquiescence
[78] The respondent takes a more general point as to the admissibility of this application for judicial review: that the petitioner is barred by mora, taciturnity and acquiescence.

[79] As is confirmed in Portobello Park Action Group Association v The City of Edinburgh Council 2012 SLT 1137 (a decision which was issued subsequent to the argument before me but which follows the authorities cited to me by Mrs Wolffe) for the plea of mora, taciturnity and acquiescence to be sustained, all three of these elements must be present: Somerville v The Scottish Ministers supra at para 94 (Portobello Park Action Group Association at para 13). There is no Scottish authority which supports the proposition that mere delay will do: R (Burkett) v Hammersmith & Fulham London Borough Council and another [2002] 1 WLR 1593, Lord Hope at para 63. Regard must be had to all the circumstances of the case (Somerville, at para 94).

[80] At paragraphs 14 to 16 of its opinion, the court in Portobello Park Action Group Association explained what was meant by the three necessary elements of the plea:

"[14] Whether the passage of time amounts to mora is a question of fact and degree. As Lord Glennie noted in United Co-operative Ltd v NAP, 2007 SLT 831, paragraph [30]:

'Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all the circumstances ... In assessing what is a reasonable time, account must, of course, be taken of the complexity of the matter, and the need to take advice, gather information, and draft proceedings. In some cases, this will require considerable time ... '

Similarly in Somerville v The Scottish Ministers, paragraph [92], it was explained that:

'The plea [of mora, taciturnity and acquiescence] is necessarily protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied. There may be cases where the passage of time, as related to the surrounding circumstances, may be such as to yield the inference of acquiescence in the decision in question ... The petitioner may, however, be in a position to put forward an explanation for the delay sufficient to rebut the inference ... '

[15] Taciturnity has been defined (United Co-operative Ltd, paragraph [32]) as:

'... a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out ...'

[16] As for acquiescence, we again refer to United Co-operative Ltd, at paragraph [33]:

'Acquiescence simply means assent to what has taken place. The enquiry is not a subjective one to be answered by looking into the mind of the petitioners. The test is objective. Acquiescence requires to be inferred from the petitioners' inaction and silence. The question is how the matter would have appeared to a reasonable person observing the petitioners' conduct, knowing of all the circumstances of which the petitioners knew or ought to have known when acting in the way they did. '"

[81] In my opinion little need be said in repelling the plea of mora, taciturnity and acquiescence here. It is true that the petition presents a challenge to each of a series of decisions, the first of which was made on 8 March 2011, more than a year before the petition was served on 17 May 2012, and the last, at least in respect of the Inner House proceedings, on 12 October 2011. According to Mrs Wolffe, the first intimation of any intention to challenge the decisions was the petitioner's application for legal aid to initiate the present proceedings on 28 March 2012. While this may be so, the reality, as I would see it, is that the petitioner has been engaged in persistently making applications to the respondent with a view to funding his challenge to the ERO's decision over a period which continued after the respondent's refusal, on 12 October 2011, of civil legal aid for the Inner House proceedings. Among the decisions which the petition sought to challenge was one made on 14 February 2012. I do not see this as a case of mora (in the sense of simple delay), but if, by reference to the first date upon which the petitioner would have been entitled to challenge the respondent's failure properly to address an application to it, that were thought not to be so, it is certainly not a case of taciturnity or acquiescence and without all three elements the plea cannot succeed.

The third matter: the availability and utility of the remedies sought
Reduction: doubtful utility

[82] As I have indicated, it was Mrs Wolffe's submission that there was no absolute right, either as a matter of purely domestic law or EU law, to civil legal aid but, in any event, as she explained, the scheme for the granting of A&A and civil legal aid (and therefore special urgency cover) did not make provision for retrospective awards. Events, as she also explained, and in particular the progress of the petitioner's application for judicial review of the ERO's decision, had moved on. Reduction of the various refusals which had been challenged would therefore produce no useful result for the petitioner and for that reason Mrs Wolffe submitted that decree of reduction should not be pronounced.

[83] I do not propose to give effect to Mrs Wolffe's submission that reduction should not be granted because doing so would produce no useful result. It may well be that the respondent does not have power under the scheme to make retrospective awards, although I did not understand that to be conceded by Mr O'Neill. I do not consider that to be a sufficient reason not to reduce what in my opinion were unlawful decisions. If the petitioner sees that reduction of the decisions is of use to him, then, in the circumstances, I would see that he is entitled to reduction. If, on the other hand, it is of no benefit, so be it. As Mr O'Neill put it, if it will have no benefit then it will have no harm.

Damages

[84] The petitioner seeks payment to the petitioner by the respondent of the sum of £10,000 "by way of vindicatory damages". The basis of this claim is set out at statement 67 of the petition where it is explained as being founded on the rule to be derived from the decision of the European Court of Justice in Francovich and Bonifaci v Italy supra. The claim is quantified, at statement 68, in terms suggesting that the claim is compensatory in nature, by reference to the court dues and other outlays incurred on behalf of the petitioner and his liability to an adverse award of expenses without the provision for modification of such liability which is available to a recipient of legal aid, although in argument Mr O'Neill went beyond these averments to include within the claim non-pecuniary or moral damages, the award of which might "underscore the impotence of the right breached". Reference was made to P, C and S v United Kingdom supra, Docherty v Scottish Ministers 2012 SC 150 and R (Greenfield) v Home Secretary supra. Mr O'Neill invited the court to defer consideration of the damages claim until the outcome of the petitioner's appeal to the Supreme Court had been determined. If the petitioner was successful he might obtain an award of costs in his favour which would mitigate what would otherwise be his damages.

[85] Mrs Wolffe questioned what and whose damage it was being sought to compensate in the present proceedings. She emphasised that notwithstanding the decisions by the respondent on the petitioner's various applications, the petitioner has been represented by solicitors and by senior counsel throughout the proceedings for judicial review of the ERO's decision. There can be no question of him having been unable to present an application for civil legal aid and yet, in respect of the Outer House proceedings, he had not done so. There was something disquieting about a claim for damages in these circumstances. There was no relevant causal link between any decision on the part of the respondent and any want of legal aid and thus no causal link between any decision of the respondent, or the manner in which any decision was taken or articulated, and any loss or damage on the part of the petitioner. In any event, Mrs Wolffe pointed out, pursuing proceedings for judicial review simply with a view to recovering damages had been deprecated: eg R (Greenfield) v Home Secretary supra.

[86] Although Mr O'Neill touched on the possibility of an award of damages in other sorts of public law proceedings, he justified the claim here solely by reference to the decision in Francovich. He did not dispute Mrs Wolffe's submission that at common law damages were not recoverable for what was no more than an ultra vires act (and see Somerville v The Scottish Ministers 2008 SC (HL) 45, Lord Hope at para 19). Therefore the petitioner's claim for damages depends upon him satisfying the criteria for an award of damages established by the Francovich decision.

[87] As is very familiar, Francovich concerned a directive on the protection of employees in the event of insolvency of their employer, which had not been implemented by Italy within the specified time-limit. In Francovich the Court of Justice held that it was inherent in the scheme of the European Treaty that a Member State should be liable to an individual in reparation in the event that the individual suffers harm by reason of a breach of Community law for which the Member State is responsible. This potential liability in reparation and the conditions under which it might be enforced are set out in paragraphs 38 to 41 of the opinion of the Court, as follows:

"38 Although State liability is thus required by Community law, the conditions under which that liability gives rise to a right to reparation depend on the nature of the breach of Community law giving rise to the loss and damage.

39 Where, as in this case, a Member State fails to fulfil its obligation under the third paragraph of Article 189 of the Treaty to take all the measures necessary to achieve the result prescribed by a directive, the full effectiveness of that rule of Community law requires that there should be a right to reparation provided that three conditions are fulfilled.

40 The first of those conditions is that the result prescribed by the directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, the third condition is the existence of a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties.

41 Those conditions are sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on Community law."

[88] While Francovich was specifically concerned with a failure to implement a directive, I accept that its application is more general and that state liability in damages might extend to contravention of a right conferred by the Charter. I accept that liability might be brought home against an independent body, such as the respondent, which is charged with carrying out a state function: Haim v Kassenzahnärztliche Vereinigung Nordrhein [2002] 1 CMLR 11. I also accept that the right conferred by article 47 (3) of the Charter is intended for the benefit of individuals, such as the petitioner. Mrs Wolffe would challenge whether the petitioner can show any causal link as between any act for which the respondent is responsible and loss and damage suffered by the petitioner. Be that as it may, in my opinion, a claim for Francovich damages must fail in the present case because, difficult as the precise content of the relevant right is to identify, I do not consider that any right of the petitioner conferred by EU law has been contravened, either by the respondent or any other emanation of the state.

Conclusion

[89] I propose to grant decree of declarator and reduction in respect of the various decisions that are conceded to have been unlawful or that I have held to be unlawful and, quoad ultra, to dismiss the petition. The declarator will be to the effect that the decisions were vitiated by error of law. However, the petition shall be brought out by order with a view to allowing parties the opportunity to address the court on the precise terms of an interlocutor which reflects the foregoing opinion. I shall reserve all questions of expenses.