Those who were at Brodies’ Local Government conference last month might remember that one of the cases covered in our case round-up was Glasgow City Council v Scottish Legal Aid Board and PQ [2017] CSOH 155. This was a challenge by Glasgow City Council to SLAB’s decision to grant legal aid for two appeals to the Inner House of the Court of Session against decisions of the Lord Ordinary on two petitions for judicial review.

The challenge

The challenge centred on the information made available to the Council by SLAB for the purpose of making representations on the legal aid applications. The only material made available to the Council by SLAB was a very brief statutory statement by the applicant that the Lord Ordinary had erred in law in refusing the petitions. As the applicant had not consented to circulating the more detailed representations, SLAB refused to make those available to the Council. The Council complained that it was not able to make detailed representations on the legal aid applications to SLAB and raised a judicial review of SLAB’s decision to grant legal aid on the basis of unfairness.

The Outer House decision

In the Outer House, the Lord Ordinary had held that SLAB did not have a duty to provide all relevant information to all parties invited to make representations, as it was constrained by its statutory duty of confidentiality under section 34 of the Legal Aid (Scotland) Act 1986. However, in refusing SLAB permission to disclose his grounds of appeal, the applicant had not acted in accordance with SLAB’s statutory Civil Handbook. The Lord Ordinary considered that SLAB should have told the applicant that it would not consider his application until he had provided sufficient notice of the case to the Council. As a result, the Lord Ordinary found in favour of the Council.

The Inner House decision

The Lord Ordinary’s decision was then appealed by SLAB to the Inner House, which took a different view.

The decision of the Inner House is available here. In short, it overturned the decision of the Lord Ordinary and refused the Council’s petition, with the effect of upholding SLAB’s decision on legal aid. The reasons for the Inner House’s decision were as follows:

  • The facts and circumstances surrounding the legal aid application were already known to the Council, and the Council had, or ought to have had, sufficient notice of what the case was about and the key grounds of appeal. The Council had sufficient information upon which to submit detailed submissions to SLAB, which it in any case did. There was therefore no apparent unfairness to the Council;
  • Disclosure of the applicant’s grounds of appeal is not required by the Civil Handbook, by the 1986 Act or regulations;
  • There is no general rule that reasons must be given to every party affected by an administrative decision. The Council was not a party to the legal aid application and there was no statutory right of review at its instance. The interests of fairness did not require that the Council be notified of the reasons for SLAB’s decision.

The Inner House also held that the case of Fife Regional Council v Scottish Legal Aid Board 1994 SLT 96, in which it was held that the statutory statement made by an applicant for legal aid did not require to contain “specific and detailed grounds of appeal” remained good law and was applicable.

It is worth noting that the Inner House’s decision proceeded on the basis that the Council was aware of the circumstances and legal considerations of the applicant’s case and that there was therefore no prejudice to its position. A Court may take a different view where the nature of an applicant’s case is not clear or cannot be deduced by the authority from the relevant facts and circumstances.