The Scottish Legal Aid Board has a wide measure of discretion in respect of the reasonableness of granting legal aid, and no actual right to legal aid is recognised in law, the Inner House has ruled.

Lord Malcolm, Lord Doherty and Lord Matthews gave the decision in refusing a challenge by William Beggs to a decision by the Board to refuse him legal aid for an appeal to the UK Supreme Court in relating his attempt to obtain certain information from the police under the Freedom of Information (Scotland) Act 2002. The Scottish Information Commissioner, affirmed by the Inner House, had ruled the information exempt from disclosure.

Mr Beggs, who is serving a life sentence for murder, had made two previous unsuccessful applications for legal aid in connection with his proposed appeal, and had unsuccessfully sought judicial review of those refusals. He had also submitted a second freedom of information request in revised terms. This was refused by the police as vexatious, but the on appeal the Commissioner ruled that it was not. The Board's refusal of the latest application took place ahead of that ruling, but the Board took the view that it would be speculative to suggest that the request would ultimately fail.

It considered that a privately funded individual of moderate means would at least await a final decision on the request before embarking on risky and expensive litigation before the Supreme Court. It was therefore not shown that it was reasonable to grant legal aid as an alternative available remedy had not been fully exhausted.

In the present proceedings the Lord Ordinary rejected Mr Beggs' contentions that that decision was irrational or unlawful, and that an application for legal aid engaged a civil right in terms of article 6(1) of the European Convention. Before the Inner House Mr Beggs maintained that article 6 was invoked; that he represented the interests of wider society; and that the refusal of legal aid breached his right to a fair trial.

Lord Malcolm, delivering the opinion of the court, noted that the financial conditions had been met and that the Board was satisfied as to probable cause. However it enjoyed a wide discretion in forming a view on the reasonableness of granting legal aid. It had approached its task in the proper manner and the court had no jurisdiction to substitute any views of its own.

Mr Beggs' assertion of a right to civil legal aid was "misconceived both under the domestic legislation and the Convention jurisprudence". Masson and Van Zon v Netherlands (1996) "indicates that the wide measure of discretion afforded to the Board in respect of the reasonableness of granting legal aid demonstrates that no actual right is recognised in law". In any event article 6 presupposed a dispute which was directly decisive for a private right, which was not the case here.

Lord Malcolm added that "there can be circumstances where, notwithstanding the absence of an absolute right to civil legal aid, its refusal would be an unjustifiable interference with the right of access to the court. However this is not such a case". Further, "It cannot be said that the petitioner has been or is being wrongly denied access to a fair hearing before the courts in respect of his complaints about the outcome of his attempts to obtain information from the authorities."

Regarding his further contentions, he did not represent wider society; the Board's acceptance of probable cause did not elide the reasonableness test. And any post-conviction rights to recover information "did not require that, notwithstanding the outstanding second FOI request, public funds be allocated to the proposed appeal to the UKSC".

For these reasons the court agreed with the Lord Ordinary and refused the reclaiming motion.

Read the opinion of the court.