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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bibi, Re Application for Judicial Review  ScotCS CSOH_151 (23 August 2007)
Cite as:  ScotCS CSOH_151,  CSOH 151
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OUTER HOUSE, COURT OF SESSION
 CSOH 151
OPINION OF LORD KINCLAVEN
in the petition of
Judicial Review of
a purported determination of the Scottish Ministers in terms of
Section 50(5) of the Planning (
Petitioner: Barne, Advocate; Drummond Miller WS
Respondents: Mure, Advocate: The Solicitor to the Scottish Executive
 In that opinion I decided inter alia that there had been a breach of the Petitioner's rights under Article 6(1) of the European Convention on Human Rights (the "ECHR") because of unreasonable delay by the Scottish Ministers.
 At the most recent By Order hearing a motion was made by the Petitioner to sustain the Petitioner's first plea-in-law to its full extent and for decree of reduction of the determination of the Scottish Ministers in terms of Section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 dated 4 July 2003 ("the determination") in terms of paragraph 3(a) of the Petition.
 However, it was agreed between the parties that, in the absence of reduction, the appropriate course was to put the case out By Order to determine further procedure meantime reserving further questions of "just satisfaction" and damages.
1. that there has been a breach of Article 6(1) of the European Convention on Human Rights (the "ECHR") because of unreasonable delay by the Scottish Ministers;
2. that the Scottish Ministers failed to take into consideration relevant factors; and
3. that the Scottish Ministers acted irrationally.
 I was satisfied that there has been a breach of Article 6(1) because of unreasonable delay by the Scottish Ministers. However, questions of delay aside, I was not satisfied that the Scottish Ministers had failed to take into consideration relevant factors and I was not satisfied that the Scottish Ministers had acted irrationally.
"I propose to
sustain the first plea-in-law for the Petitioner by granting the declarator
sought in paragraph 3(d) of the Petition, namely, that in delaying until
"I am not satisfied (questions of delay apart) that the Respondents erred in their approach such as to justify reduction of their determination. ...
Authorities and references
 At the By Order hearing counsel referred me to the following authorities and references:-
1. Grahame v Magistrates of Kirkaldy (1882) 9R (HL) 91 (particularly Lord Watson at pages 91-93, the Lord Chancellor at pages 96-97, Lord O'Hagan at page 98, Lord Blackburn at page 99 and the order of the House of Lords which is set out on page 100).
2. King v East Ayrshire Council 1998 SC 182 (particularly at page 183F-G and the Lord President (Roger) at pages 194C to 196G).
3. Tehrani v Home Secretary 2006 SLT 1123.
4. Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 (Lord Reed particularly at paragraph 47, page 326H- 327D).
5. Attorney-General's Reference (No. 2 of 2001)  2 AC 72 (particularly Lord Bingham of Cornhill at paragraphs 9, 23-24, and 30 and Lord Roger of Earlsferry at paragraph 172 - pages 84C-F, 88H to 90B, 91H to 92D and 130G-131E).
6. R v H M Advocate 2003 SC (PC) 21 (particularly at page 22H-23B, Lord Hope of Craighead at paragraphs 53, 59, 66, 69 and 70, Lord Clyde at paragraphs 86 and 97, and Lord Roger of Earlsferry at paragraphs 126 to 128 and 151 - pages 40C-E, 42B-C, 43H-44B, 44G-45D, 49G-50B, 53B-D, 63C-64B and 72A-C).
7. William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 (particularly the Lord President (Roger) at paragraphs 58 and 61 - page 929A-B and 929H-930D).
8. Malloch v Aberdeen Corporation 1971 SC (HL) 85.
9. London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 (particularly at pages 2-3, the Lord Chancellor at pages 30-31, Lord Fraser of Tullybelton at page 36, and Lord Keith of Kinkel at pages 43-44).
10. Hoffman v South African Airways 2001 (1) SA 1 (particularly Ngcobo J. at paragraphs 42 to 46).
12. The Human Rights Bill, White Paper, Chapter 2.
14. Human Rights Act 1998 (c. 42), section 6.
15. Planning (
16. Blair, Scots Administrative Law: Cases and Materials, 1999, pages 159 and 574 to 580.
17. Stair Memorial Encyclopaedia, The Laws of Scotland, pages 158, 160-162, and 169-171.
19. Andrew Somerville and Others (Petitioners) v The Scottish Ministers  CSIH 52 (particularly at paragraphs 22, 33-34, 40, 57, 71-72, and 80).
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The Human Rights Act 1998
 Section 6(1) of the Human Rights Act 1998 provides:-
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
 Section 8 of the Human Rights Act 1998 relates to "Judicial remedies" and is to the following effect:-
"8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including - (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining - (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention.
(5) A public authority against which damages are awarded is to be treated-(a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made; (b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6) In this section-'court' includes a tribunal; 'damages' means damages for an unlawful act of a public authority; and 'unlawful' means unlawful under section 6(1)."
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."
"Any decision of the Judicial Committee in proceedings under this Act shall be stated in open court and shall be binding in all legal proceedings (other than proceedings before the Committee)."
The Rules of the Court of Session
 Rule of Court 58.4 was also referred to in the course of argument.
"58.4 The court, in exercising its supervisory jurisdiction on a petition for judicial review, may-
(a) grant or refuse any part of the petition, with or without conditions;
(b) make such order in relation to the decision in question as it thinks fit, whether or not such order was sought in the petition, being an order that could be made if sought in any action or petition, including an order for reduction, declarator, suspension, interdict, implement, restitution, payment (whether of damages or otherwise) and any interim order;
(c) subject to the provisions of this chapter, make such order in relation to procedure as it thinks fit."
The submissions for the Petitioner
 At the most recent By Order hearing, Mr Barne advanced essentially three propositions, namely:-
"1. that in the circumstances of the present case the appropriate remedy is one of reduction in addition to declarator;
2. that this type of case is not the sort of case where there is a discretion of the court as to remedy; and
3. that if there is such a discretion, then that discretion should not be exercised in favour of withholding decree of reduction."
 Mr Barne relied heavily on the case of R v HM Advocate 2003 SC (PC) 21 which he contrasted and compared with Attorney General's Reference (No. 2 of 2001)  2 AC 72,  UKHL 68.
 Having regard to R v HM Advocate, Mr Barne argued that in Scotland where a breach of a Convention right has been perpetrated by a member of the Scottish Executive then, as a result of section 57(2) of the Scotland Act 1998, the act is ultra vires and a nullity and there is in effect no discretion as to the remedy which the court can grant. The remedy is reduction.
 The situation is different in
 If the court was to be against the Petitioner's primary submission (for reduction), Mr Barne indicated that he would seek an opportunity to address the court at a later date in relation to a secondary motion for "just satisfaction" and damages.
 However, Mr Mure very fairly indicated that (in the event of there being no decree for reduction) the Scottish Ministers had no objection to the case being put out By Order for further procedure reserving meantime questions of "just satisfaction" and damages.
 In relation to his first two propositions, Mr Barnes
highlighted various features of R v H M Advocate 2003 SC (PC) 21 (case
number "6" on the list of authorities outlined above). The underlying principle, submitted Mr Barne,
was that a member of the Scottish Executive has no power to act incompatibly
with any Convention right. The act being
ultra vires is necessarily void and
of no effect. If the court refused
reduction in the present case, then the court would be allowing a nullity to
continue to have some form of legal existence.
That might be an option in
 Mr Barnes also highlighted several features of London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 (case number "9" on the list of authorities). Although the Scottish Ministers may seek to argue that there is an inherent jurisdiction in the court as regards remedy, the present case can be distinguished. In the present case there has been a breach of a substantive right and not just an administrative decision (such as a failure in the form of a notice, or a failure to give reasons, or a failure to take into account a relevant consideration). There is no defect in the determination per se but the Petitioner's substantive rights under Article 6 have been breached and the law requires that the determination be viewed as a nullity - because of R v H M Advocate and sections 57 and 103 of the Scotland Act 1998. The appropriate remedy is reduction.
"It may be that the days of R v H M Advocate are numbered but for the time being, in terms of section 103(1) of the Scotland Act, this court is bound by that decision."
 Mr Barnes highlighted features of Grahame v Magistrates of Kirkaldy (1882) 9R (HL) 91 (case number "1" on the list of authorities). He submitted that there must be "some very cogent reason" for depriving litigants of the ordinary means of enforcing their legal rights. It is a power that has been "very rarely exercised". The Petitioner in the present case is not pursuing an actio popularis (as in Grahame - page 93). The only person affected by reduction is Glasgow City Council and the Council undertook the works in the knowledge that they might not be able to recover what they spent. No reliance has been placed on the determination. It does not fall within the circumstances envisaged in the Grahame case.
 Mr Barnes also highlighted features of King v East Ayrshire Council 1998 SC 182 (case number "2" on the list of authorities). Although there was no reference to the Grahame case it was very much along the same lines.
 The present case is not an exceptional situation. In framing section 57(2) of the Scotland Act 1998 Parliament must have had in mind the possibility of this very event. A decision to withhold reduction in this case would be tantamount to saying that any breach by Scottish Ministers can simply be dealt with by way of damages. That would effectively mean agreeing with Attorney General's Reference (No. 2 of 2001) rather than R v H M Advocate.
 There was no substance in the distinction between a completed breach and a threatened breach. If the court would have interdicted the decision prospectively, then it should reduce the decision retrospectively.
The submissions for the Scottish Ministers
 On behalf of the Scottish Ministers, Mr Mure opposed the motion for reduction.
 The Petitioner's present motion is to the effect that the court must grant decree of reduction, but that is an extravagant proposition given the factual background. The court should not be railroaded into a single remedy where there is a range of remedies.
 The language of section 8 of the Human Rights Act was foreshadowed in the White Paper, Rights Brought Home: The Human Rights Bill (1997) (Cm 3782). In particular paragraph 2.6 of the White Paper relates to "Remedies for a failure to comply with the Convention" (item number "12" on the list of references mentioned above). The background is one of balance between the interests of the community and the interests of the individual.
 The White Paper is also referred to by Lord Roger of Earlsferry in Attorney-General's Reference (No. 2 of 2001)  2 AC 72 at paragraph 172 (page 130G et seq).
 Further, in terms of her own averments (in paragraph 3 of the present petition), the Petitioner seeks the specified orders and then "craves the court to pronounce such further order, decrees or orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case."
 Mr Mure referred me to case of
 Mr Mure also submitted that the ratio of R v H M Advocate (case number "6" on the list of authorities) does not apply in this case so as to exclude the court having a range of remedies. Reference was made in particular to paragraphs , , ,  and .
 Mr Mure also founded upon Andrew
Somerville and Others (Petitioners) v
The Scottish Ministers  CSIH 52 (case number "19" on the list of
authorities). I was referred, in
particular, to paragraphs , -, , , -, and  of
the Opinion of the Court - which was delivered by the Lord President on
 The Somerville case concerned a different point from the one before me, but it provided extremely helpful recent authority in explanation of R v H M Advocate and it supported the Scottish Ministers in the present case - so submitted Mr Mure.
 In relation to Grahame v Magistrates of Kirkaldy (1882) 9R (HL) 91 (case number "1" on the list of authorities set out above) I was referred in particular to pages 91-93, 96-97, 98, and 99 and to the order of the House of Lords on page 100. In Grahame, the magistrates had no power to erect the stables but the court chose not to order their removal. It was decided (having regard to the offer made by the magistrates to provide substitute ground) that it was not expedient or for the interest of the community of the burgh that decree should be granted for the removal of the stables. In the present case, there were very cogent reasons for not granting decree of reduction. The sum of г53,000 or thereby would be lost to the public purse and there would be a windfall benefit to the Petitioner - even although the decision itself has not been found to have been erroneous. There was delay but the decision itself was correct. Reduction of the decision would deprive both parties of the appeal mechanism laid down by Parliament. Reduction would also place the rights and obligations of the parties in something of a limbo situation. The Council would be left with an invoice for work done. The Petitioner would have decree for reduction but would have no opportunity for re-determination. There would be a degree of uncertainty for all parties as to what the true position was. In short, the case of Grahame supports the view that the court does have a discretion.
 In relation to London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 (case number "9" on the list) I was referred to pages 2-3, 30-31, 36 and pages 43-44. In the present case the Petitioner is suggesting that her situation fits into a category of acts where there is only one remedy open to the court - but the London & Clydeside Estates Ltd case supports the view that it is unhelpful to try to fit cases into pigeon-holes. On a proper view, the court does have a discretion and a range of remedies in judicial review.
 In relation to King v East Ayrshire Council 1998 SC 182 (case number "2" on the list) I was referred to page 183F-G and pages 194C to 196G. In the present case, looking to the substance of what may have been lost by the delay, it could fairly be said that the Petitioner has no substantial interest in having the determination reduced. It was the petitioner herself who invoked the determination procedure. Having done so, she obtained a correct decision (albeit after some delay). The Petitioner's challenges to the merits of the decision have failed. If the determination was to be reduced, the matter could not be re-determined. The Petitioner may have suffered some anxiety and expense as a result of delay (although that is not clear from the pleadings) but that would not be sufficient to show that she has a substantial interest in setting the determination aside.
 William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 (case number "7" on the list ) particularly at paragraphs 58 and 61 (page 929A-B and 929H-930D) suggests that the court has a discretion.
 Lord Reed's comments in Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 (case number "4" on the list at paragraph 47, page 326H- 327D) support of the view that legal pigeon-holes are not particularly helpful and that the court does have a discretion in the field of remedies in judicial review.
 Mr Mure also provided reference to comparative jurisprudence in Hoffman v South African Airways 2001 (1) SA 1 and in particular paragraphs 42 to 46. Appropriate relief must be "fair and just in the circumstances of the particular case". The court is entitled to consider the interests of other parties and should consider the availability of other remedies when deciding what was appropriate. Appropriateness imports the elements of justice and fairness.
 Similar considerations are reflected in Attorney-General's Reference (No. 2 of 2001)  2 AC 72 (case number "5" on the list). I was referred to paragraphs 9, 23-24, and 30 and paragraph 172 (pages 84C-F, 88H to 90B, 91H to 92D and 130G-131E). Lord Bingham of Cornhill, in paragraph 24, encapsulated the conclusions of the majority.
 Having regard to the opinion of the Court in the case of Somerville Petitioner  CSIH 52, I was not bound by the decision in R v H M Advocate.
Summary of Scottish Minister's position
1. that the court does have discretion as to what remedy is just and appropriate in the present case;
2. that in the present case there is no good reason for giving the Petitioner what is in essence a windfall of some г53,000;
3. that where the court has held that the merits of the determination are good and unchallengeable, the court should see reduction as the last resort (rather than the first) and that this conclusion is reinforced by the consideration that reduction would deprive both parties of a statutory mechanism to which both parties have a right;
4. that if the determination were to be reduced, then prima facie the Council would be unable to recover the monies concerned and, at best, there would be legal uncertainty for all parties leading to further delay and expense; and
5. that the court has a range of remedies available - including damages by way of "just satisfaction".
 In terms of the Petitioner's own averments (at paragraph 3 of the petition), the court is craved to pronounce such further orders "as may seem to the court to be just and reasonable in all the circumstances of the case".
 In particular, I agree with the Scottish Ministers that the ratio of R v H M Advocate (case number "6" on the list of authorities) does not apply in this case so as to exclude the court having a range of remedies.
Attorney-General's Reference (No. 2 of 2001) (Case 5 on the list of authorities)
"172 In the White Paper, Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), the Government set out proposals for the legislation which eventually passed into law as the Human Rights Act 1998. The relevant aspects of the Act do not differ significantly from those of the original Bill that followed the White Paper. In para 1.18 the Government expressed the view that the time had come "to enable people to enforce their Convention rights against the state in the British courts". In other words people were going to be given remedies in our domestic courts for the breach of their Convention rights. The Government went on to say, in para 2.6:
"A public authority which is found to have acted unlawfully by failing to comply with the Convention will not be exposed to criminal penalties. But the court or tribunal will be able to grant the injured person any remedy which is within its normal powers to grant and which it considers appropriate and just in the circumstances. What remedy is appropriate will of course depend both on the facts of the case and on a proper balance between the rights of the individual and the public interest. In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages."
This passage contains a number of signposts. First, it confirms that, when commending the Bill to Parliament, the Government's intention was that, if a public authority acted unlawfully in terms of section 6(1), the court or tribunal should be able to grant the injured person any remedy which was within its normal powers and which it considered appropriate and just in the circumstances. Secondly, what was appropriate by way of remedy was to depend on the facts of the case and on a proper balance between the rights of the individual and the public interest. Therefore, finally, even though an act of a public authority that was incompatible with the Convention would always be unlawful, this did not mean that it would always have to be quashed. In some cases the appropriate remedy would be an award of damages and nothing more. In short, the Bill was to mirror the Convention and, as a general rule, it would not prescribe any specific remedy for a violation. Like the Convention, the Bill would leave it to the courts to choose the appropriate remedy in the circumstances. Moreover, nothing suggests that, exceptionally, the Government envisaged that the courts would always have to grant a stay or equivalent administrative law remedy to prevent a future act in violation of the Convention, even though the courts would not have had to quash the self-same act if it had once occurred."
 The case of
"Just satisfaction and damages ...
6. The Convention has always ... made provision for affording just satisfaction to the injured party. Article 41 of the Convention, repeating the substance of article 50 of the original version, now provides:
"Just satisfaction: If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the high contracting party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party."
Article 41 is not one of the articles scheduled to the 1998 Act, but it is reflected in section 8 of the Act, which is to this effect ... (I have set out above the provisions of section 8 which were quoted by Lord Bingham) ...
It is evident that under article 41 there are
three preconditions to an award of just satisfaction: (1) that the court should
have found a violation; (2) that the domestic law of the member state should
allow only partial reparation to be made; and (3) that it should be necessary
to afford just satisfaction to the injured party. There are also preconditions to an award of
damages by a domestic court under section 8: (1) that a finding of unlawfulness
or prospective unlawfulness should be made based on breach or prospective
breach by a public authority of a Convention right; (2) that the court should
have power to award damages, or order the payment of compensation, in civil
proceedings; (3) that the court should be satisfied, taking account of all the
circumstances of the particular case, that an award of damages is necessary to
afford just satisfaction to the person in whose favour it is made; and (4) that
the court should consider an award of damages to be just and appropriate. It would seem to be clear that a domestic
court may not award damages unless satisfied that it is necessary to do so, but
if satisfied that it is necessary to do so it is hard to see how the court
could consider it other than just and appropriate to do so. In deciding whether to award damages, and if
so how much, the court is not strictly bound by the
principles applied by the European court in awarding compensation under article
41 of the Convention, but it must take those principles into account. It is, therefore, to
Damages for breach of article 6
is desirable for present purposes to concentrate on the
8. In the great majority of cases in which the European court has found a violation of article 6 it has treated the finding of the violation as, in itself, just satisfaction under article 41. Very many examples could be cited ...
court has acknowledged the principle of restitutio
in integrum (see Piersack v
"The court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements. The court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the state cannot be required to pay damages in respect of losses for which it is not responsible."
11. As appears from the passage just cited, the court has ordinarily been willing to depart from its practice of finding a violation of article 6 to be, in itself, just satisfaction under article 41 only where the court finds a causal connection between the violation found and the loss for which an applicant claims to be compensated. Such claim may be for specific heads of loss, such as loss of earnings or profits, said to be attributable to the violation. The court has described this as pecuniary loss, which appears to represent what English lawyers call special damage. This head does not call for consideration here. It is enough to say that the court has looked for a causal connection, and has on the whole been slow to award such compensation."
R v H M Advocate (Case 6)
 I agree with counsel for the Scottish Ministers that the ratio of R v H M Advocate 2003 SC (PC) 21 does not apply in the circumstances of this particular case so as to exclude the court having a range of remedies.
"53. I turn now to the main issues in this case. These are whether prosecution of the appellant on charges 1 and 3 would be incompatible with his right to a hearing within a reasonable time under article 6(1) and, if so, whether he is entitled to have these charges dismissed on the ground that the Lord Advocate has been deprived of the power to prosecute him on those charges by section 57(2) of the Scotland Act 1998. I wish to concentrate first on the second issue, which raises the question of remedy. I do so in order to demonstrate that the effect of section 57(2) is that, once it has been established that a proposed or continuing act is incompatible with a person's article 6(1) Convention right, the Lord Advocate is prohibited from doing that act by the statute. The only course which the court can take is to order him not to do it and bring the proceedings to an end. ...
59. ... Past breaches of article 6 can be dealt with
by applying the principle which, as the European court has held, underlies the
provision of just satisfaction for the breach of that article. This is that the victim should as far as
possible be put in the position which he would have enjoyed had the proceedings
complied with the Convention's requirements: Kingsley
"69. In Dyer v Watson  1 AC 379 Lord Millett observed that little attention had so far been given to the content of the rights which are set out in article 6(1) of the Convention. ... I agree with what he said in the last two sentences of para 131 about the effect of section 57(2) of the Scotland Act 1998:
"Section 57(2) of the Scotland Act 1998 imposes a vires control by providing that the Lord Advocate has no power to act in a way which is incompatible with an accused's Convention rights. If the Lord Advocate threatens to exceed his powers, there is no discretion to withhold a remedy." ...
70. Nor, in my opinion, in cases of threatened or continuing acts by the Lord Advocate which are incompatible with any of the Convention rights is there any discretion as to the appropriate remedy. Section 57(2) says that the Lord Advocate has no power to do any such act. If he proposes to act, or to continue to act, in a way that is incompatible with any of the accused's Convention rights, the accused is entitled to apply to the court for an order that he be stopped from doing so. ..."
"97. Before leaving the matter of the Convention right I should say something about the consequences of a violation of the right, stressing at the outset that the right and the consequences of violating the right are distinct and separate matters. Plainly the stage at which the matter of the consequences of a violation is raised calls for differences in approach. Viewed, as the European Court of Justice must view the case, at the latest stage there may well be remedies other than setting aside a conviction. It is sufficient to refer to the decision of the Board in Mills v HM Advocate  1 AC 441 where the delay occurred after conviction in the course of the appeal process. In these circumstances it was recognised that the discontinuance of a prosecution was only one possible remedy, and indeed not the normal one. The alternatives noted in the jurisprudence of the European Court of Human Rights include such things as a reduction in sentence, monetary compensation, or even a finding that a violation had occurred. ..."
 I agree with Mr Mure that the decision in R v H M Advocate requires to be seen against the backdrop of the facts of that particular case - which are materially different from the case before me.
 I am not persuaded that the Scotland Act has the effect contended for by the Petitioner in the present case, namely that all such decisions (tainted by unreasonable delay on the part of Scottish Ministers) are null and fall to be reduced.
 If the Petitioner in the present case had been successful (rather than unsuccessful) in obtaining the determination that she sought on appeal, reduction would be a wholly inappropriate outcome. The Petitioner would lose the benefit of a determination in her favour because of a breach of her Article 6 rights by Scottish Ministers. That cannot be right.
v South African Airways (Case10)
 I am attracted to the flexible approach outlined by Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (particularly at paragraphs 42 to 46) but the background to that case is different from the one before me.
 I agree with Mr Mure that the case of Somerville Petitioner provides me with helpful recent authority in explanation of R v H M Advocate. It also supports the Scottish Ministers in the present case.
" The Lord Ordinary took the view that she was bound by the decision of the Privy Council in R v HM Advocate to reach the decision which she did. In our view she was mistaken in that matter. As however we also are bound, whatever our personal views, by the ratio of any decision of the Privy Council, we must first endeavour to identify that ratio. ...
 ... We are also satisfied that the ratio of the decision of the Judicial Committee in R v HM Advocate is not determinative of the issue for decision in the present proceedings. It may be (though we express no opinion on the matter) that the members of the Committee were at one in the views expressed by Lord Hope at paragraph . But that is nothing to the point as regards the present proceedings. At paragraph  Lord Hope was discussing what constituted an "act" of the Lord Advocate. Subject to the issue earlier discussed in respect to a Governor, it is not disputed that in this case the material acts were acts of the Scottish Ministers. The true ratio of R. v HM Advocate concerned the nature of the remedy available to the appellant in circumstances where the Lord Advocate, as prosecutor, was threatening to infringe the appellant's Convention right. The majority held that the appellant was entitled to require the court to dismiss the two charges, the minority that his remedy lay in the fact of delay being brought into account when any question of penalty fell to be considered.
 It follows in our view that the opinions expressed by Lord Hope and Lord Rodger as to the basis on which a remedy in damages lay were obiter. As however they were enunciated by judges of great distinction it is incumbent on us to explain why it is that respectfully we are unable to share their views. ...
 Our decision on this aspect of the case may be summarised as follows. The fundamental flaw in the petitioners' approach is that they insist that proceedings in respect of an act which is incompatible with Convention rights must be made either under the Human Rights Act (to the exclusion of the Scotland Act) or under the Scotland Act (to the exclusion of the Human Rights Act). The true position is that the Human Rights Act and the Scotland Act are both on the statute book, and a decision must be made, not as to which of them is applicable to a given claim, but rather as to whether there are provisions made by one or other or both of them which are applicable to a particular claim. ..."
 It seems to me that the ratio of R. v HM Advocate concerned the nature of the remedy available in circumstances where the Lord Advocate was threatening to infringe the appellant's Convention right (emphasis added).
London & Clydeside Estates Ltd v Aberdeen District Council (Case 9)
 In relation to London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 I gratefully adopt the helpful comments provided by Lord Reed in Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 (case number "4" on the list).
"that even where an administrative body has erred in such a way as would invalidate its decision the court is not bound to quash that decision, since 'the jurisdiction to grant decree of reduction of administrative decisions is "inherently discretionary"' (King v East Ayrshire Council at 1998 SC 194, 1998 SLT 1294)"
 In my opinion, the central proposition which can be taken from the authorities (outlined above) is that when considering a petition for judicial review, the court can, and should, consider whether the proposed remedy is appropriate, fair and just or (in Convention terms) whether it is just and proportionate and effectively vindicates the Convention right concerned.
 In the result, and in accordance with my earlier opinion, I shall sustain the first plea-in-law for the Petitioner to the extent of granting the declarator sought in paragraph 3(d) of the Petition, namely, that in delaying until 4 July 2003 the Respondents have acted in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.