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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bibi, Re Application for Judicial Review [2007] ScotCS CSOH_151 (23 August 2007)
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Cite as: [2007] ScotCS CSOH_151, [2007] CSOH 151

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 151

 

P1525/04

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD KINCLAVEN

 

in the petition of

 

RAMZAN BIBI

Petitioner;

 

for

 

Judicial Review of a purported 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

 

Respondents:

 

 

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Petitioner: Barne, Advocate; Drummond Miller WS

Respondents: Mure, Advocate: The Solicitor to the Scottish Executive

 

23 August 2007

Introduction

[1] My decision in relation to the merits of this petition is contained in my earlier opinion dated 6 October 2006 which is reported at [2006] CSOH 152.

[2] 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.

[3] Thereafter, as requested by the parties, the case was put out By Order in relation to further procedure.

[4] This present opinion relates, in essence, to the question of remedy and in particular to the question of reduction.

[5] 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.

[6] Mr Barne appeared for the Petitioner and argued that the determination should be reduced.

[7] Mr Mure appeared for the Scottish Ministers to oppose that motion and he argued that there should be no reduction.

[8] The Petitioner was not in a position to address me in relation to subsidiary questions such as "just satisfaction".

[9] 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.

[10] I was prepared to proceed on that basis.

[11] Having taken into account all the arguments presented to me, I have decided to refuse the Petitioner's motion.

[12] I am not satisfied that this in an appropriate case for reduction.

[13] My reasons are outlined below.

 

Background
[14
] At the first hearing, Mr Barne had presented three arguments on behalf of the Petitioner, namely:-

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.

[15] On behalf of the Scottish Ministers, Mr Wolffe had argued that each of those arguments should be rejected.

[16] Glasgow City Council (the "Council") are the relevant planning authority. The Council have not lodged answers.

[17] 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.

[18] In my earlier opinion, at paragraphs [211] - [212], I stated inter alia:-

"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 4 July 2003 the Respondents have acted in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ... Before doing so, I will hear parties further as requested."

[19] I also stated, at paragraph [237]:-

"I am not satisfied (questions of delay apart) that the Respondents erred in their approach such as to justify reduction of their determination. ...

[20] In the result, at the first hearing, the Petitioner succeeded in relation to her first argument but failed in relation to her second and third arguments (paragraphs [208], [263] and [269]).

[21] I turn now to the Petitioner's motion for reduction.

 

Authorities and references
[22
] 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) [2004] 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).

11. Clyde & Edwards, Judicial Review, chapters 23 & 24 (particularly paragraphs 23.29 and 23.30).

12. The Human Rights Bill, White Paper, Chapter 2.

13. Scotland Act 1998 (c. 46), section 57.

14. Human Rights Act 1998 (c. 42), section 6.

15. Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 (c. 9), section 50.

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.

18. Regina (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 particularly pages 673C-674E and Lord Bingham of Cornhill at paragraphs 6 to 11 (page 677D to 680G).

19. Andrew Somerville and Others (Petitioners) v The Scottish Ministers [2006] CSIH 52 (particularly at paragraphs 22, 33-34, 40, 57, 71-72, and 80).

[23] Reference was also made to Lafarge Redland Aggregates Ltd v Scottish Ministers 2001 SC 298.

[24] For ease of reference, it might also be helpful to set out the following provisions in a little more detail.

 

Article 6(1) ECHR
[25
] Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention") provides that:-

"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
[26
] 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."

[27] 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)."

 

The Scotland Act 1998

[28] Section 57(2) of the Scotland Act 1998 provides that:-

"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."

[29] Section 103(1) of the Scotland Act 1998 also provides that:-

"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
[30
] Rule of Court 58.4 was also referred to in the course of argument.

[31] It relates to "Powers of court in judicial review" and is to the following effect:-

"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
[32
] 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."

[33] Those submissions were developed along the following lines.

[34] 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) [2004] 2 AC 72, [2003] UKHL 68.

[35] Further details of those two cases are set out in my previous opinion at paragraphs [214] to [226]. I need not repeat them

[36] Mr Barnes also relied upon the terms of section 57(2) and section 103(1) of the Scotland Act 1998 - which I have set out above.

[37] 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.

[38] The situation is different in England where the language used is that of "unlawfulness" rather than "ultra vires". In light of the Attorney General's Reference (No. 2 of 2001) the act is not necessarily a nullity. It would be open to the court to award a remedy in the sense of "just satisfaction" by way of damages or in some other way.

[39] 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.

[40] Mr Barne was not in a position to advance his secondary submissions at the By Order hearing and, indeed, there are no averments in the Petition to support such submissions.

[41] 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.

[43] 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 England but it was not an option under section 57(2) of the Scotland Act 1998.

[44] 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.

[45] Mr Barne ended this part of his submission (in relation to his first two propositions) by stating:-

"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."

[46] Mr Barne's third proposition was that if there is a discretion open to the court, then that discretion should not be exercised in favour of withholding decree of reduction.

[47] 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.

[48] 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.

[49] In the present case, the Respondent's have breached a substantive right - which took Mr Barne back to his earlier submissions.

[50] 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.

[51] Glasgow City Council would also be entitled to seek "just satisfaction".

[52] The correct approach involves granting decree of reduction.

[53] In response to the submissions for the Scottish Minister, Mr Barne emphasised that the Petitioner relied on R v H M Advocate to show that the determination was a nullity.

[54] In the normal course of things reduction would be the appropriate remedy,

[55] The common law discretion was only exercisable where there were compelling or cogent reasons.

[56] Section 57(2) of the Scotland Act applied to prospective and to retrospective breaches.

[57] The Somerville case does not alter R v H M Advocate where section 57(2) is involved.

[58] The breach (in the present case) is of a substantive right. The delay caused prejudice in relation to the presentation of the Petitioner's claim.

[59] 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.

[60] The fact of the matter is that Glasgow City Council have not entered the process. The status of the invoice from Glasgow City Council remains to be determined.

[61] Attorney General's Reference (No. 2 of 2001) is an English case.

[62] The law has developed differently in Scotland - so submitted the Petitioner.

[63] Lafarge Redland Aggregates Ltd v Scottish Ministers pre-dates R v H M Advocate.

[64] By withholding the remedy of reduction the court would be allowing something that is a nullity and has no legal status to have legal status.

[65] Accordingly, submitted Mr Barne, the court should grant decree of reduction.

 

The submissions for the Scottish Ministers
[66
] On behalf of the Scottish Ministers, Mr Mure opposed the motion for reduction.

[67] In Mr Mure's submission the court has a discretion as to what remedy, if any, is appropriate where a Convention right has been breached.

[68] The submissions for the Scottish Ministers fell into three chapters.

[69] In the first chapter, Mr Mure dealt with the background - which I have already summarised above.

[70] In the second chapter, Mr Mure dealt with the question of remedies for breach of Convention rights.

[71] In his third chapter, Mr Mure dealt with the question of the court's discretion in relation to decrees of reduction.

[72] I can outline chapters two and three as follows.

 

Remedies
[73
] In relation to remedies, Mr Mure pointed out that the motion for reduction was made at the bar and that there were no averments in relation to "just satisfaction" or damages.

[74] In the present case, as appears from my earlier opinion, the violation of the Petitioner's Convention rights was in the past. It was a completed violation.

[75] The timing of the determination is the only aspect that has been found to be challengeable.

[76] In overview, the Petitioner and Glasgow City Council were in dispute over a debt and the Scottish Ministers acted as tribunal and issued a determination.

[77] There was nothing wrong with the merits of the determination.

[78] On the face of it, the Council should be paid for the necessary work which they undertook.

[79] If the determination were to be reduced then that would deprive both parties (the Petitioner and the Council) of the appeal procedure which is laid down in the legislation.

[80] Scottish Ministers cannot now make a timeous determination. That much was not disputed.

[81] Reduction, if granted, would give a windfall to the Petitioner. Monies have been expended. The Petitioner has been enriched. Yet, on reduction, the slate would be wiped clean.

[82] 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.

[83] Despite section 57 of the Scotland Act 1998 and R v H M Advocate there is a range of remedies.

[84] It is important to bear in mind that the remedy sought is by way of judicial review. The court has a range of remedies. The court may make such order at is thinks fit.

[85] Reference was made to Rule of Court 58.4 and to section 8 of the Human Rights Act 1998.

[86] 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.

[87] The White Paper is also referred to by Lord Roger of Earlsferry in Attorney-General's Reference (No. 2 of 2001) [2004] 2 AC 72 at paragraph 172 (page 130G et seq).

[88] 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."

[89] The facts are highly relevant to the choice of remedy.

[90] There is a wide discretion and a range of possible outcomes.

[91] One possible remedy is plainly damages.

[92] Mr Mure referred me to case of Regina (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 (case number "18" on the list of authorities).

[93] In certain circumstances damages might be available.

[94] In others, a bare declarator may be sufficient.

[95] In the present case, the question of damages in principle and the quantum of any award were matters for another day - at a further By Order hearing.

[96] In the present case the outcome of the determination would not have been any different.

[97] There cannot be a re-determination. A "re-trial" is not possible in the present case.

[98] The delay in the present case has not cost the Petitioner г53,000 or thereby.

[99] 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 [53], [59], [69], [70] and [97].

[100] R v H M Advocate can be distinguished on its facts. R v H M Advocate concerned a "proposed or continuing act" whereas there is no threatened or continuing act in the present case.

[101] Why should the Petitioner in the present case not look for "just satisfaction" - asked Mr Mure?

[102] Mr Mure also founded upon Andrew Somerville and Others (Petitioners) v The Scottish Ministers [2006] CSIH 52 (case number "19" on the list of authorities). I was referred, in particular, to paragraphs [22], [33]-[34], [40], [57], [71]-[72], and [80] of the Opinion of the Court - which was delivered by the Lord President on 3 November 2006.

[103] 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.

[104] R v H M Advocate concerned a threatened act in continuing criminal proceedings whereas the present case concerns a past act of delay in determining an appeal in relation to a civil debt.

 

Discretion
[105
] In his third chapter of submissions, Mr Mure dealt with the question of the court's discretion in relation to decrees of reduction - broadly as follows.

[106] The determination in the present case exists in the sense that it has or may have legal effect. That is implicit in the Petitioner's motion which seeks reduction.

[107] Reduction is a common law remedy involving a discretionary power.

[108] In any event, this court has a broad discretion as to remedy in judicial review.

[109] In support of his submission, Mr Mure referred me to various cases - as follows.

[110] 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.

[111] 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.

[112] 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.

[113] 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.

[114] 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.

[115] 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.

[116] Similar considerations are reflected in Attorney-General's Reference (No. 2 of 2001) [2004] 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.

[117] Having regard to the opinion of the Court in the case of Somerville Petitioner [2006] CSIH 52, I was not bound by the decision in R v H M Advocate.

 

Summary of Scottish Minister's position

[118] In summary, and for the reasons outlined above, the Scottish Ministers invited the court to hold:-

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".

[119] In the result, submitted the Scottish Ministers, the motion for reduction should be refused.

[120] In that event, the appropriate course would be to put the case out By Order.

[121] It was recognised that the court would grant decree of declarator - as outlined in my earlier opinion.

[122] Questions of expenses should be reserved meantime.

 

Discussion
[123
] I can take as my starting point the fact that this is a petition for judicial review.

[124] 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".

[125] Although not determinative of the issues before me, those averment provide some support the proposition that judicial review is properly seen as a flexible remedy.

[126] In general terms, relation to judicial review, I agree with counsel for the Scottish Ministers:-

[127] The Rules of Court are consistent with that conclusion but I agree with Mr Barne that they are not determinative of the issue before me.

[128] In my opinion, however, the court does have a discretion as to remedy in this particular case - essentially for the reasons outlined by the Scottish Ministers.

[129] 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.

[130] I need not rehearse the various passages from the cases relied upon by counsel (which I have already detailed above). Suffice it to say that I have taken them all into account.

[131] However, it might be helpful to highlight the following features from those cases.

 

Attorney-General's Reference (No. 2 of 2001) (Case 5 on the list of authorities)

[132] Attorney-General's Reference (No. 2 of 2001) [2004] 2 AC 72 supports the Scottish Ministers.

[133] In that case Lord Roger of Earlsferry stated at paragraph 172 (page 130G et seq) inter alia:-

"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."

 

Regina (Greenfield) v Secretary of State for the Home Department (Case 18)

[134] The case of Regina (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 was plainly different from the present case but, in my view, it also supports the Scottish Ministers.

[135] In Greenfield Lord Bingham of Cornhill stated (in paragraphs 6 to 11 at page 677D to 680G) inter alia:-

"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 Strasbourg that British courts must look for guidance on the award of damages.

Damages for breach of article 6

7. It is desirable for present purposes to concentrate on the Strasbourg approach to the award of damages on finding that article 6 has been violated. Article 6 seeks to ensure that everyone, in the determination of their civil rights and obligations or of any criminal charge against them, shall enjoy a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law with judgment given in public. Criminal charges entail additional rights: the presumption of innocence, the right to be informed of the charge, the right of a person to defend the charge himself or through legal assistance of his own choosing. These are important rights, and significant violations are not to be lightly regarded. ...

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 ...

Where article 6 is found to have been breached, the outcome will often be that a decision is quashed and a retrial ordered, which will vindicate the victim's Convention right.

10. The court has acknowledged the principle of restitutio in integrum (see Piersack v Belgium (1984) 7 EHRR 251, para 11 and De Cubber v Belgium (1987) 13 EHRR 422, para 21), but has on the whole preferred to express the principle without resort to the Latin tongue. ... A recent statement of particular authority, since given by a Grand Chamber on a reference specifically directed to the issue of just satisfaction under article 41, is found in Kingsley v United Kingdom 35 EHRR 177, para 40:

"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)

[136] 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.

[137] R v H M Advocate can be distinguished on its facts.

[138] R v H M Advocate concerned a "proposed or continuing act" in a criminal prosecution at the instance of the Lord Advocate.

[139] There is no similar "proposed or continuing act" in the present case which is a civil application at the instance of the Petitioner.

[140] In R v H M Advocate Lord Hope of Craighead stated inter alia:-

"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 v United Kingdom (2000) 33 EHRR 288, 300, para 40. ..."

[141] Lord Hope went on to state:-

"69. In Dyer v Watson [2004] 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. ..."

[142] Lord Clyde, in R v H M Advocate, also stated inter alia:-

"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 [2004] 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. ..."

[143] 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.

[144] R v H M Advocate concerned a threatened act at the instance of the Lord Advocate who was seeking a criminal conviction against R.

[145] The present case concerns, in effect, a completed act of delay by Scottish Ministers in determining an appeal at the instance of the petitioner - who was seeking to reduce a civil debt.

[146] 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.

[147] 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.

[148] In my opinion, the Petitioner's approach is too rigid and inflexible.

 

Hoffman v South African Airways (Case10)
[149
] 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.

[150] It does not follow, however, that the Scottish Minister's submissions fall to be rejected.

 

Somerville Petitioner (Case 19)

[151] 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.

[152] The very detailed Opinion of the Court was delivered by the Lord President on 3 November 2006.

[153] The case is reported at [2006] CSIH 52 - which I can refer to brevitatis causa.

[154] Distilling matters down, as best I can, it seems to me that I require to have regard to inter alia the following passages in the Opinion of the Court, namely:-

"[57] 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. ...

[71] ... 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 [45]. But that is nothing to the point as regards the present proceedings. At paragraph [45] 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.

[72] 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. ...

[80] 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. ..."

[155] 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).

[156] That is not the situation in the case before me.

[157] In the result, I agree with Mr Mure's conclusion in the present case.

 

London & Clydeside Estates Ltd v Aberdeen District Council (Case 9)

[158] 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).

[159] In particular (at paragraph 47, page 326H- 327D) Lord Reed understood Lord Hailsham in London & Clydeside Estates Ltd to have been making the point, inter alia,:-

"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)"

[160] A similar conclusion can be reached in the present case - in relation to legal remedies.

[161] In my opinion, discretion does have a part to play in this case.

[162] I was not persuaded that the Petitioner's arguments were well founded.

 

Summary
[163
] The Petitioner suggests that in order to vindicate her Convention right I am, in effect, bound to grant decree of reduction in the circumstances of the present case.

[164] I do not agree.

[165] On the contrary, I agree with the arguments advanced by the Scottish Ministers.

[166] R. v HM Advocate can be distinguished - for the reasons outlined above.

[167] It may also be noted that, unlike the accused in R. v HM Advocate, it was the Petitioner herself who sought a determination in the present case.

[168] 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.

[169] In cases of the present kind, which involve a breach of Article 6 Convention rights by Scottish Ministers, the remedy of reduction will no doubt be uppermost in the mind of the judge concerned.

[170] However, in my view, it would be unduly restrictive and inflexible to say that reduction is the appropriate remedy in every such case.

[171] Each case falls to be determined on its own particular facts and circumstances.

[172] The salient features of the present case are as follows:-

[173] In short, in the circumstances of this particular case and for the reasons outlined above, I agree with the Scottish Ministers in relation to the issues debated at the By Order hearing.

[174] Accordingly, I shall refuse the Petitioner's motion for reduction.

 

Decision

[175] 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.

[176] Having taken into account all the arguments presented to me at the By Order hearing, I am not satisfied that this in an appropriate case for reduction.

[177] I shall refuse the Petitioner's motion for decree of reduction - for the reasons outlined above.

[178] As requested by the parties, I shall also put the case out By Order in relation to further procedure.

[179] I shall reserve meantime further questions of "just satisfaction" and damages.

[180] I shall also reserve the question of expenses.

 


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