Legal Aid (Scotland) Act 1986

Legislation Crest

Legal Aid (Scotland) Act 1986

1986 CHAPTER 47

An Act to establish the Scottish Legal Aid Board and the Scottish Legal Aid Fund; to make new provision in connection with the availability of criminal legal aid in Scotland; to repeal and re-enact with modifications certain enactments relating to legal aid and to advice and assistance in Scotland; and for connected purposes.

[25th July 1986]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1Act (except s. 18(3)) extends only to Scotland, see s. 46(4)

Modifications etc. (not altering text)

C2Act applied by Valuation and Rating (Scotland) Act 1956 (c. 60), s. 22 (3) (as substituted (1.4.1992) by Local Government Finance Act 1992 (c.14), ss. 99(1), 117(1), Sch. 13 para. 10; S.I. 1992/818, art. 2(a))

Act applied (1.4.1993) by Local Government Finance Act 1992 (c. 14), ss. 111 (9); S.I. 1993/575, art. 2(a)

Act applied (with modifications) (S.) (15.3.1996) by S.I. 1996/716, art. 24(2)

Act applied (1.9.2001) by 2001 c. 17, s. 6(3)(b) (with ss. 16(5), 78); S.I. 2001/2161, art. 2

C3Act modified (7.10.1996) by S.I. 1996/2447, reg. 7(1), Sch.2

C4Act applied (1.1.2004) by Extradition Act 2003 (c. 41), ss. 183, 221; S.I. 2003/3103, art. 2 (with arts. 3, 4 (as amended by S.I. 2003/3312))

Part IS Scottish Legal Aid Board

The BoardS

1 The Scottish Legal Aid Board.S

(1)There shall be established a body to be known as the Scottish Legal Aid Board (in this Act referred to as “the Board”).

(2)The Board shall have the general functions—

(a)of securing that legal aid and advice and assistance are available in accordance with this Act; and

(b)of administering the Fund.

(3)The Board shall consist of not less than 11 and not more than 15 members appointed by the Secretary of State; and the Secretary of State shall appoint one of the members to be chairman.

(4)The Secretary of State shall appoint to membership of the Board—

(a)at least two members of the Faculty of Advocates;

(b)at least two members of the Law Society; and

(c)at least one other person having experience of the procedure and practice of the courts.

(5)Before appointing persons to be members of the Board in pursuance of either paragraph (a) or paragraph (b) of subsection (4) above, the Secretary of State shall consult with the professional body mentioned in that paragraph.

(6)Schedule 1 to this Act shall have effect with respect to the Board.

2 Powers of the Board.S

(1)Subject to the provisions of this Act, the Board may do anything—

(a)which it considers necessary or expedient for securing the provision of legal aid and of advice and assistance in accordance with this Act; or

(b)which is calculated to facilitate or is incidental to or conducive to the discharge of its functions.

(2)Without prejudice to the generality of subsection (1) above, the Board shall have power—

(a)to enter into any contract or agreement, including, subject to subsection (3) below, any contract or agreement to acquire or dispose of land;

(b)to invest money;

(c)to promote or assist in the promotion of publicity relating to the functions of the Board;

(d)to undertake any inquiry or investigation which the Board considers necessary or expedient in relation to the discharge of its functions; and

(e)to give to the Secretary of State such advice as it may consider appropriate in relation to the provision of legal aid and advice and assistance in accordance with this Act.

(3)The power under subsection (2)(a) above to enter into any contract or agreement to acquire or dispose of land shall not be exercised without the approval in writing of the Secretary of State.

3 Duties of the Board.S

(1)The Board shall, from time to time, publish information as to the discharge of its functions in relation to legal aid and advice and assistance including the forms and procedures and other matters connected therewith.

(2)The Board shall, from time to time, furnish to the Secretary of State such information as he may require relating to its property and to the discharge and proposed discharge of its functions.

(3)It shall be the duty of the Board to provide to the Secretary of State, as soon as possible after 31st March in each year, a report on the exercise of its functions during the preceding 12 months.

(4)The Board shall have regard, in the exercise of its functions, to such guidance as may from time to time be given by the Secretary of State.

(5)Guidance under subsection (4) above shall not relate to the consideration or disposal (whether in general or in respect of individual applications) of—

(a)applications for legal aid or advice and assistance;

(b)supplementary or incidental applications or requests to the Board in connection with any case where legal aid or advice and assistance has been made available.

(6)For the purposes of subsection (2) above, without prejudice to the requirements of section 5 of this Act, the Board shall permit any person authorised in that behalf by the Secretary of State to inspect and make copies of any accounts or documents of the Board and shall furnish such explanation of them as that person or the Secretary of State may require.

The FundS

4 Scottish Legal Aid Fund.S

(1)The Board shall establish and maintain a fund to be known as the Scottish Legal Aid Fund (in this Act referred to as “the Fund”).

(2)There shall be paid out of the Fund—

(a)[F1subject to section 4A(13),] such sums as are, by virtue of this Act or any regulations made thereunder, due [F2out of the Fund] to any solicitor or counsel [F3or registered organisation] in respect of fees and outlays properly incurred [F4or in respect of payments made in accordance with regulations made under section 33(3A) of this Act], in connection with the provision, in accordance with this Act, of legal aid or advice and assistance;

[F5(aza)any expenses incurred by the Board in connection with the provision by solicitors employed by it by virtue of section 27(1) of this Act of—

(i)advice and assistance in relation to civil matters;

(ii)civil legal aid;

(iii)any services as are mentioned in section 26(2) of this Act;]

[F6(aa)any expenses incurred by the Board in connection with the provision of criminal legal assistance by solicitors employed by it by virtue of section 28A of this Act;

(ab)any sums payable by the Board under contracts made by virtue of section 33A of this Act;]

[F7(ac)any sums payable by the Board under section 17(2D) of this Act;]

[F8(ac)such sums as are, by virtue of section 4A, due out of the Fund to any person;]

(b)expenses awarded to any person under section 19 of this Act; and

(c)such other payments F9. . . as the Secretary of State may F10. . . determine.

(3)There shall be paid into the Fund—

(a)any contribution payable to the Fund by any person in pursuance of section 17 of this Act;

[F11(aa)any contribution payable to the Board by any person in pursuance of section 11 of this Act;

[F12(aaa)any award of expenses made by a criminal court to a person to whom criminal legal assistance has been provided by a solicitor employed by the Board under sections 26 and 27 of this Act;]

(ab)any award of expenses made by a criminal court to a person to whom criminal legal assistance has been provided by a solicitor employed by the Board by virtue of section 28A of this Act;]

[F13(ac)any sums recovered from a person who is receiving or has been in receipt of advice and assistance, civil legal aid or criminal legal aid under section 24, but who has available to him rights and facilities making it unnecessary for him to take advantage of the provisions of this Act.]

[F14(ad)any sums recovered from a person in connection with a grant made by the Board in accordance with section 4A;]

(b)any sum recovered under an award of a court or an agreement as to expenses in any proceedings in favour of any party who is in receipt of civil legal aid;

(c)any sum which is to be paid in accordance with section 17 of this Act out of property recovered or preserved for any party to any proceedings who is in receipt of civil legal aid;

(d)the sums to be paid by the Secretary of State in pursuance of section 40(1)(a) of this Act; and

(e)such other receipts of the Board as the Secretary of State may, F10. . . determine.

Textual Amendments

F4Words in s. 4(2)(a) substituted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(2)(a)(i); S.I. 1997/2323, art. 6(2)

F6S. 4(2)(aa)(ab) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(2)(a)(ii); S.I. 1997/2323, art. 6(2)

F10Words in s. 4(2)(c)(3)(e) repealed (1.7.1999) by 1999/1820, arts. 1(2), 4, Sch. 2 Pt I para. 86(2), Pt. IV

F11S. 4(3)(aa)(ab) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(2)(b); S.I. 1997/2323, art. 6(2)

F12S. 4(3)(aaa) inserted (6.7.2001) by 2001 asp 7, ss. 9(1), 15(3)

[F154APower of Board to make grants for certain purposesS

(1)The Board may, on an application made to it by any person, make grants of such amount and subject to such conditions (including conditions as to repayment) as it may determine to the person in respect of—

(a)any of the matters mentioned in subsection (2);

(b)any of the purposes mentioned in subsection (3).

(2)The matters are—

(a)any civil legal aid or advice and assistance in relation to civil matters provided, or to be provided, by any solicitor or counsel;

(b)any advice and assistance in relation to civil matters provided, or to be provided, by any adviser;

(c)any advice, assistance or representation (not falling within paragraphs (a) or (b)) provided, or to be provided, by any person, which is connected to civil matters.

(3)The purposes are facilitating, supporting and developing the provision of any of the matters referred to in subsection (2).

(4)The Scottish Ministers must specify a limit to the total amount that may be paid out of the Fund by virtue of subsection (1).

(5)In specifying any limit under subsection (4) the Scottish Ministers must specify the period in relation to which that limit applies.

(6)Any grant made under subsection (1) must be made in accordance with an approved plan.

(7)The Board must prepare and publish a plan as to the criteria which the Board will apply in considering whether or not to make such a grant; and the Board must submit the plan to the Scottish Ministers for approval.

(8)The Scottish Ministers may approve a plan submitted to them under subsection (7) with or without modification.

(9)The Scottish Ministers may at any time—

(a)approve a modification of an approved plan proposed by the Board or withdraw approval of such a plan or modification;

(b)require the Board to prepare and publish a plan under subsection (7).

(10)An application under subsection (1) must include such information as the Board may reasonably require.

(11)In preparing and publishing the plan under subsection (7) the Board must do so in accordance with such directions as the Scottish Ministers may give.

(12)Any money due to a person by virtue of this section shall be paid to the person by the Board out of the Fund.

(13)Any money paid to a person under subsection (1) as provided in subsection (12), in respect of—

(a)any civil legal aid or advice and assistance provided by any solicitor or counsel;

(b)any advice and assistance provided by an adviser,

shall be taken to be a payment in accordance with this Act; and no other payment may be made out of the Fund in respect of that civil legal aid or, as the case may be, advice and assistance.

(14)In this section, “approved plan” means a plan approved, for the time being, by the Scottish Ministers under subsection (8); and includes any part or modification of the plan so approved.

(15)For the purposes of this section, “person” includes a body corporate or unincorporate.]

Textual Amendments

5 Accounts and audit.S

(1)The Board shall keep separate accounts with respect to—

(a)the Fund; and

(b)the receipts and expenditure of the Board which do not relate to the Fund,

and shall prepare in respect of each financial year a statement of accounts.

(2)The accounts shall be kept and the statement of accounts shall be prepared in such form as the Secretary of State may, F16. . . direct.

[F17(2A)The Board shall send the accounts and the statement of accounts to the Scottish Ministers by such time as they may direct.

(2B)The Scottish Ministers shall send the accounts and the statement of accounts to the Auditor General for Scotland for auditing.]

F18(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)The Secretary of State shall lay before each House of Parliament a copy of every—

(a)annual report of the Board under section 3(3) of this Act;

F18(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In this section “financial year” means the period beginning with the commencement of this section and ending with 31st March next following and each subsequent period of 12 months ending with 31st March in each year.

Textual Amendments

F16Words in s. 5 repealed (1.7.1999) by S.I. 1999/1820, arts. 1(2)(3), 4, Sch. 2 Pt I para. 86(3).

F17S. 5(2A)(2B) inserted (1.4.2000) by 2000 asp 1, s. 26, Sch. 4 para. 6(2); S.S.I. 2000/10, art. 2(3)

F18S. 5(3)-(6) repealed (1.4.2000) by 2000 asp 1, s. 26, Sch. 4 para. 6(3); S.S.I. 2000/10, art. 2(3)

Part IIS Advice and Assistance

Modifications etc. (not altering text)

C7Pt. II (ss. 6-12) applied (1.1.1998) by S.I. 1997/3070, regs. 3, 4, 5

6 Definitions. S

(1)In this Act—

  • “advice and assistance” means any of the following—

    (a)

    oral or written advice provided to a person by a solicitor (or, [F19where appropriate], by counsel)—

    (i)

    on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice;

    (ii)

    as to any steps which that person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings, making an agreement or other transaction, making a will or other instrument, obtaining further legal or other advice and assistance, or otherwise) having regard to the application of Scots law to those circumstances;

    (aa)

    [F20oral or written advice provided by an adviser—

    (i)

    on the application of Scots law to any specified categories of circumstances which have arisen in relation to the person seeking advice;

    (ii)

    as to any steps which that person might appropriately take having regard to the application of Scots law to those circumstances;]

    (b)

    assistance provided to a person by a solicitor (or, [F19where appropriate], by counsel) in taking any steps mentioned in paragraph (a)(ii) above, by taking such steps on his behalf or by assisting him in so taking them; and

    (c)

    [F21assistance provided to a person by an adviser in taking any steps mentioned in paragraph (aa)(ii) above, by taking such steps on his behalf or by assisting him in so taking them;]

  • “assistance by way of representation” means [F22, subject to section 12B(3) of this Act,] advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings—

    (a)

    before a court or tribunal; or

    (b)

    in connection with a statutory inquiry,

    whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).

(2)In this Part of this Act—

  • [F23“adviser” means a person who is approved by a registered organisation for the purposes of providing advice and assistance on behalf of the organisation and who is the person by whom advice and assistance is provided;]

  • “client” means a person who seeks or receives advice and assistance in accordance with this Part of this Act;

  • “statutory inquiry” has the meaning assigned to it by [F24section 16(1) of the M1 Tribunals and Inquiries Act 1992];

  • “the solicitor” means the solicitor by whom any advice and assistance is provided or, where it is provided by counsel, the solicitor on whose instruction counsel provides it;

  • “tribunal” includes an arbiter or oversman, however appointed,

[F25and references to a court, tribunal or statutory inquiry include references to any court, tribunal or statutory inquiry which is established by law for purposes which are or include those of determining persons’ civil rights and obligations and to any person who or group of persons or body or procedure which (however described) is appointed or established by law for such purposes.]

Textual Amendments

F19Words in s. 6(1) substituted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2 ), s. 74, Sch. 8 para. 36(2); S.I. 1991/2151, art. 3, Sch.

F20S. 6(1) definition of “advice and assistance”: para (aa) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(3)(a)(i), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F21S. 6(1) definition of “advice and assistance”: para (c) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(3)(a)(ii), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F22S. 6(1) definition of "assistance by way of representation": words inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(3)(a)(iii), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F23S. 6(2): definition of "adviser" inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(3)(b), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F24Words in s. 6(2) substituted (01.10.1992) by Tribunals and Inquiries Act 1992 (c. 53), ss. 18(1), 19(2), Sch. 3 para. 20.

F25Words in s. 6(2) added (6.7.2001) by 2001 asp 7, ss. 6(1), 15(3)

Modifications etc. (not altering text)

C9Pt. II (ss. 6–12) applied by S.I. 1988/2290, reg. 3

Marginal Citations

7 Application of Part II. S

(1)Subject to subsections (2) to (4) below, and to any exceptions and conditions prescribed by regulations made under this section or under section 9 of this Act, this Part of this Act applies to any advice and assistance.

(2)This Part of this Act does not apply to advice and assistance provided to a person in connection with proceedings before a court or tribunal at a time when he is receiving legal aid in connection with those proceedings.

(3)Subject to subsection (4) below and to section 9 of this Act, this Part of this Act does not apply to assistance by way of representation.

(4)Except where subsection (2) above applies, this Part of this Act does apply, in the case of civil proceedings before a court or tribunal, to any step which consists only of negotiating on behalf of a person with a view to the settlement of a claim to which the proceedings relate.

Modifications etc. (not altering text)

C10Pt. II (ss. 6–12) applied by S.I. 1988/2290, reg. 3

8 Availability of advice & assistance. S

Subject to [F26any provision made in regulations under section 8A(1) and] section 11(2) of this Act, advice and assistance to which this Part applies shall be available in Scotland for any client if—

(a)his disposable income does not exceed [F27£238] a week; or

(b)he is (directly or indirectly) in receipt of [F28income support [F29, an income-based jobseeker's allowance (payable under the Jobseekers Act 1995) or an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance),]],

and his disposable capital does not exceed [F30£1,664].

Textual Amendments

F27Words in s. 8(a) substituted (12.4.2010 with application as mentioned in reg. 3(1) of the amending S.S.I.) by The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 4(2) (with reg. 8)

F28Words in s. 8(b) substituted (8.4.2003) by Tax Credits Act 2002 (c. 21), ss. 47, 61, Sch. 3 para. 11; S.I. 2003/962, art. 2(4)(d)

F30Words in s. 8 substituted (12.4.2010 with application as mentioned in reg. 3(1) of the amending S.S.I.) by The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 4(3) (with reg. 8)

Modifications etc. (not altering text)

C11Pt. II (ss. 6–12) applied by S.I. 1988/2290, reg. 3

C12S. 8 modified (7.10.1996) by S.I. 1996/2447, reg. 5(1)(a)

[F318ACriminal advice and assistance: automatic availability in certain circumstancesS

(1)The Scottish Ministers may by regulations provide that, in such circumstances as may be prescribed in the regulations, advice and assistance in relation to criminal matters is to be available for any relevant client without reference to the financial limits in section 8.

(2)In subsection (1), “relevant client” means a client who is a person to whom section 15A of the Criminal Procedure (Scotland) Act 1995 (right of suspects to have access to a solicitor) applies.]

Textual Amendments

9 Regulations may apply Part II to representation. S

(1)Regulations made under this section may provide for this Part of this Act to apply to assistance by way of representation; and regulations so made may make different provision for different cases or classes of case.

(2)Such regulations may—

(a)describe the proceedings (or stages of proceedings) in relation to which this Part of this Act shall so apply by reference to the court, tribunal or statutory inquiry, to the issues involved, to the capacity in which the person requiring the assistance is concerned, or in any other way;

(b)specify, in relation to any proceedings so described, the assistance by way of representation which may be provided;

(c)prescribe the criteria to be applied in determining whether assistance by way of representation should be provided;

(d)require that the approval of the Board or of such other appropriate authority as may be prescribed shall be obtained, in certain classes of case, as a pre-condition of the provision of assistance by way of representation; and

[F32(dd)provide that assistance by way of representation shall be available in relation to such proceedings as may be prescribed, without reference to the financial limits under section 8 of this Act;

(de)provide that section 11(2) of this Act shall not apply as respects assistance by way of representation received in relation to such proceedings as may be prescribed;]

(e)modify the financial limits under sections 8 and 10(2) of this Act in their application to assistance by way of representation by substituting for the sums specified therein such other sums as may be prescribed, and such modification of the financial limit under the said section 10(2) may substitute different sums in relation to different proceedings or stages of proceedings.

(3)Such regulations may also make provision, for the purposes of paragraph (d) of subsection (2) above, as to—

(a)the procedure to be followed in applying for approval and the criteria for determining whether approval should be given;

(b)the conditions which should or may be imposed; and

(c)the circumstances in which approval may be withdrawn and the effect of its withdrawal.

Textual Amendments

F32S. 9(2)(dd)(de) inserted (27.9.1999) by 1999 c. 22, ss. 32, 108(3)(a) (with Sch. 14 para. 7(2))

Modifications etc. (not altering text)

C13Pt. II (ss. 6–12) applied by S.I. 1988/2290, reg. 3

10 Financial limit. S

(1)Where at any time (whether before or after advice and assistance has begun to be provided to a client) it appears to the solicitor [F33or, as the case may be, adviser] that the cost of giving it is likely to exceed the limit applicable under this section—

(a)the solicitor [F34or adviser] shall determine to what extent that advice and assistance can be provided without exceeding that limit; and

(b)shall not give it (or, as the case may be, not instruct counsel to provide it) so as to exceed that limit except [F35, subject to subsection (4),] with the approval of the Board.

(2)The limit applicable under this section is [F36£60].

(3)For the purposes of this section, the cost of providing advice and assistance shall be taken to consist of such of the following as are applicable in the circumstances—

(a)any outlays (including the fees and outlays of counsel) which may be incurred by the solicitor or his firm or incorporated practice in, or in connection with, the providing of the advice and assistance;

[F37(aa)any outlays which may be incurred by the registered organisation (which approved the adviser) in, or in connection with, the providing of the advice and assistance;]

(b)any fees (not being charges for outlays) which, apart from section 11 of this Act, would be properly chargeable by the solicitor or his firm or incorporated practice in respect of the advice and assistance; and

[F38(ba)any fees (not being charges for outlays) which, apart from section 11 of this Act, would be properly chargeable by the registered organisation (which approved the adviser) in respect of the advice and assistance;]

(c)in the case of advice and assistance given by a solicitor employed by the Board, any fees (not being charges for outlays) which, if the solicitor had been employed by a firm of solicitors or by an incorporated practice, would, apart from section 11 of this Act, have been properly chargeable by that firm or practice in respect of the advice and assistance.

[F39(4)In the circumstances set out in subsection (5), no application may be made for the Board's approval for the cost of giving the advice and assistance—

(a)to exceed the limit applicable under this section; or

(b)to that limit having been exceeded.

(5)The circumstances are that the matter with which the advice and assistance is concerned is not—

(a)specified as a distinct matter for the purposes of advice and assistance by virtue of regulations made under this Act; or

(b)being treated as if it were a distinct matter by virtue of such regulations.]

Textual Amendments

F36Sum in s. 10(2) substituted (1.8.1988) by S.I. 1988/1389, reg. 2, and different sums substituted for different cases: (17.12.1988) by S.I. 1988/2288, reg. 2; (10.1.1994) by S.I. 1993/3187, regs. 3, 4 (as amended (1.5.2007) by S.I. 2007/248, reg. 4)

Modifications etc. (not altering text)

C14Pt. II (ss. 6–12) applied by S.I. 1988/2290, reg. 3

11 Clients’ contributions. S

(1)A client shall not be required to pay any fees or outlays in respect of advice and assistance received by him in pursuance of this Part of this Act except in accordance with subsection (2) [F40, (2A)][F41or (3)] below.

(2)Where—

(a)a client’s disposable income exceeds [F42£102] a week; and

(b)he is not (directly or indirectly) in receipt of [F43income support or [F44, an income-based jobseeker's allowance (payable under the Jobseekers Act 1995) or an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance),]]

he shall be liable to pay, in respect of the advice and assistance, fees or outlays up to, but not in aggregate exceeding, such amount as may be prescribed by regulations made under this section, and such regulations may prescribe different maximum payments for different amounts of disposable income and for different cases or classes of case.

[F45(2A)A client to whom paragraphs (a) and (b) of subsection (2) above apply and to whom criminal legal assistance or advice or assistance which is not criminal legal assistance has been provided by a solicitor employed by the Board under sections 26 and 27 of this Act shall pay to the Board such contribution in that respect as the Board may, subject to subsection (3A) below, determine.]

[F46(3)Where a client to whom paragraphs (a) and (b) of subsection (2) above apply receives criminal legal assistance from a solicitor employed by the Board by virtue of section 28A of this Act, he shall pay to the Board such contribution in respect of that assistance as the Board may, subject to subsection (4) below, determine.

(3A)The amount determined by the Board under subsection (2A) above shall not exceed the amount which would be charged by a solicitor who is not employed by the Board under sections 26 and 27 of this Act.]

(4)The amount determined by the Board under subsection (3) above shall not exceed the amount which could have been charged in respect of the assistance in question by a solicitor.

Textual Amendments

F40Words in s. 11(1) inserted (6.7.2001) by 2001 asp 7, ss. 9(2)(a), 15(3)

F41Words in s. 11(1) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(3)(a); S.I. 1997/2323, art. 6(2)

F42Words in s. 11(2)(a) substituted (12.4.2010 with application as mentioned in reg. 3(1) of the amending S.S.I.) by The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 4(4) (with reg. 8)

F43Words in s. 11(2)(b) substituted (8.4.2003) by Tax Credits Act 2002 (c. 21), ss. 47, 61, Sch. 3 para. 12; S.I. 2003/962, art. 2(4)(d)

F45S. 11(2A)(3A) inserted (6.7.2001) by 2001 asp 7, ss. 9(2)(b), 15(3)

F46S. 11(3)(4) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(3)(b); S.I. 1997/2323, art. 6(2)

Modifications etc. (not altering text)

C15Pt. II (ss. 6-12) applied by S.I. 1988/2290, reg. 3

C16S. 11 modified (7.10.1996) by S.I. 1996/2447, reg. 5(1)(b)

12 Payment of fees or outlays otherwise than through clients’ contributions. S

(1)F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)This section applies to any fees or outlays properly chargeable (in accordance with section 33 of this Act), in respect of advice and assistance given to a client in pursuance of this Part of this Act [F48; but does not apply to the salary payable to a solicitor employed by the Board [F49under sections 26 and 27 of this Act or to the salary payable to a solicitor employed by the Board]] by virtue of section 28A of this Act.

(3)Except in so far as regulations made under this section otherwise provide, fees or outlays to which this section applies shall be paid to the solicitor [F50or, as the case may be, the registered organisation,] as follows—

(a)first, out of any [F51amount] payable by the client in accordance with section 11(2) of this Act;

(b)secondly, in priority to all other debts, out of any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the client by any other person in respect of the matter in connection with which the advice and assistance is provided;

(c)thirdly, in priority to all other debts, out of any property (of whatever nature and wherever situated) which is recovered or preserved for the client in connection with that matter, including his rights under any settlement arrived at in connection with that matter in order to avoid or bring to an end any proceedings;

(d)fourthly, by the Board out of the Fund, following receipt by it of a claim submitted by the solicitor [F52or the registered organisation].

Textual Amendments

F48Words in s. 12(2) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(4)(a); S.I. 1997/2323, art. 6(2)

F49Words in s. 12(2) inserted (6.7.2001) by 2001 asp 7, ss. 9(3), 15(3)

F51Word in s. 12(3)(a) substituted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(4)(b); S.I. 1997/2323, art. 6(2)

Modifications etc. (not altering text)

C18Pt. II (ss. 6–12) applied by S.I. 1988/2290, reg. 3

C19S. 12(3) modified (7.10.1996) by S.I. 1996/2447, reg. 5(1)(c)

C20S. 12(3)(c) restricted by S.I. 1987/382, reg. 15(1)

S. 12(3)(c) excluded (7.10.1996) by S.I. 1996/2447, reg. 16(2)

S. 12(3)(c): power to exclude conferred (7.10.1996) by S.I. 1996/2447, reg. 16(3)

[F53Register of advice organisationsS

Textual Amendments

F53Ss. 12A, 12B and cross-heading inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(6), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

12ARegister of advice organisationsS

(1)The Board shall establish and maintain a register of advice organisations (“the register of advice organisations”) of organisations approved by the Board as registered organisations in relation to the provision of advice and assistance by persons approved by such organisations as advisers.

(2)A person who—

(a)is a solicitor;

(b)is an advocate;

(c)is a conveyancing practitioner or an executry practitioner, within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40);

(d)has acquired any right to conduct litigation or right of audience by virtue of section 27 of that Act,

may not be an adviser.

(3)Schedule 1A makes further provision about advisers and registered organisations, the register of advice organisations, code of practice for advisers etc.

12BAdvice and assistanceS

(1)The Scottish Ministers may by regulations specify categories of circumstances for the purposes of paragraph (aa) of the definition of “advice and assistance” in section 6(1) of this Act.

(2)The power under subsection (1) may specify different categories for different purposes.

(3)In this Act—

(a)“advice and assistance” as defined in section 6(1)(c) is limited to the extent to which it is competent for the adviser to perform any steps on behalf of the person or by assisting him in so taking them;

(b)“assistance by way of representation” as defined in section 6(1) includes advice and assistance provided by an adviser but only to the extent to which it is competent for the adviser to perform such steps referred to in that definition.]

Part IIIU.K. Civil Legal Aid

13 Meaning of “civil legal aid”.S

(1)This Part of this Act applies to civil legal aid.

(2)In this Act, “civil legal aid” means representation by a solicitor and [F54,where appropriate,] by counsel in any proceedings mentioned in Part I of Schedule 2 to this Act, on the terms provided for in this Act, and includes all such assistance as is usually given by solicitor or counsel in the steps preliminary to or incidental to proceedings, or in arriving at or giving effect to a settlement to prevent them or bring them to an end.

(3)Subject to sections 14 and 15 of this Act and to regulations made under this section, civil legal aid shall be available in connection with any proceedings mentioned in subsection (2) above, except insofar as Part II of Schedule 2 to this Act otherwise provides.

(4)Schedule 2 to this Act may be varied by regulations made under this section, so as to extend or restrict the categories of proceedings in which civil legal aid is available, by reference to the court or tribunal, to the issues involved, to the capacity in which the person seeking civil legal aid is concerned, or otherwise.

F55(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F56(6)In subsection (4) above, the reference to a court or tribunal includes a reference to a court or tribunal which is established by law for purposes which are or include those of determining persons’ civil rights and obligations and to any person who or group of persons, body, statutory inquiry or other procedure which (however described) is appointed or established by law for such purposes.]

Textual Amendments

F54Words in s. 13(2) substituted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1)(2), Sch. 8 para. 36(3), Sch. 9; S.I. 1991/2151, art. 3 Sch.

F55S. 13(5) repealed (6.7.2001) by 2001 asp 7, ss. 6(2)(a), 15(3)

F56S. 13(6) inserted (6.7.2001) by 2001 asp 7, ss. 6(2)(b), 15(3)

14 Availability of civil legal aid.S

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

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

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

[F57(1A)In the case of proceedings in such courts or tribunals as may be specified in regulations under this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) above and section 15 of this Act, such criteria as may be prescribed in those regulations are met.

(1B)In subsection (1A) above, the reference to courts or tribunals shall be construed in accordance with section 13(6) of this Act.]

[F58(1C)In the case of proceedings described in paragraph 1 of Part II of Schedule 2 to this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) and section 15 of this Act and subject to paragraph 2 of Part II of Schedule 2, such criteria as may be set out by the Scottish Ministers in directions given to the Board are met.

(1D)A direction given under subsection (1C) may—

(a)include criteria in respect of which the Board may require to satisfy itself;

(b)make different provision for different purposes;

(c)be varied or revoked at any time.

(1E)Where the Scottish Ministers give a direction under subsection (1C)—

(a)the Board must comply with it;

(b)the Scottish Ministers must arrange for the direction to be published in such manner as they consider appropriate.]

(2)The Board may require a person receiving civil legal aid to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive civil legal aid.

(3)[F59Subject to subsections (4) to (6) below,] the Board shall establish a procedure under which any person whose application for legal aid under this section has been refused may apply to the Board for a review of his application.

[F60(4)Where—

(a)the Board has refused an application for civil legal aid by a person who has applied for such aid for the purpose of raising an action against the Board; and

(b)the applicant has applied to the Board for a review of his application,

the Board shall, unless they decide to grant the application forthwith, refer the application, together with all relevant precognitions, statements and other papers, including any observations they wish to make on the application, to the sheriff for Lothian and Borders at Edinburgh.

(5)Subject to section 15 of this Act, and to subsection (2) above, where the sheriff decides—

(a)that the applicant has a probabilis causa litigandi; and

(b)that it is reasonable in the particular circumstances of the case that he should receive legal aid,

he shall so inform the Board, and the Board shall make civil legal aid available to the applicant.

(6)A decision made by the sheriff under subsection (5) above shall be final.]

Textual Amendments

F57S. 14(1A)(1B) inserted (6.7.2001) by 2001 asp 7, ss. 6(3), 15(3)

Modifications etc. (not altering text)

C21S. 14 modified (1.12.2002) by The Civil Legal Aid (Scotland) Regulations 2002 (S.S.I 2002/494), {reg. 45}

C22S. 14 excluded by S.I. 1987/381, reg. 46(2)(b)

15 Financial conditions.S

(1)A person shall be eligible for civil legal aid if his disposable income does not exceed [F61£25,450] a year.

(2)A person may be refused civil legal aid if—

(a)his disposable capital exceeds [F62£12,626]; and

(b)it appears to the Board that he can afford to proceed without legal aid.

(3)For the purposes of this section, a person’s disposable income and disposable capital shall be determined by the Board.

[F63(4)The provisions of this section are subject to Article 5 of Council Directive 2003/8/EC of the European Council on improving access to justice in cross border disputes by establishing minimum common rules relating to legal aid for such disputes, and the provisions of this section shall be construed accordingly M2.]

Textual Amendments

F61Words in s. 15(1) substituted (12.4.2010 with application as mentioned in reg. 3(2) of the amending S.S.I.) by The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 4(5) (with reg. 8)

F62Words in s. 15(2)(a) substituted (12.4.2010 with application as mentioned in reg. 3(2) of the amending S.S.I.) by The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 4(6) (with reg. 8)

Modifications etc. (not altering text)

C24S. 15 excluded by S.I. 1987/381, regs. 46(2)(a), 47(2)(a)

Marginal Citations

M2O.J. No. L 26, 31.1.2003, p.41 as corrected by a corrigendum published on 7th February 2003 (O.J. No. L 32, 7.2.2003, p.15).

ExpensesU.K.

16 Expenses in favour of certain assisted persons.S

(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F64

(2)F65. . .in sections 17 to 20 of this Act—

  • “court” includes tribunal [F66and references to either shall be construed in accordance with section 13(6) of this Act];

  • “legally assisted person” means a person in receipt of civil legal aid in the proceedings in question or a person in receipt of assistance by way of representation in any proceedings to which this Part applies.

Textual Amendments

F66Words in s. 16(2) added (6.7.2001) by 2001 asp 7, ss. 6(4), 15(3)

17 Contributions, and payments out of property recovered.S

(1)Legally assisted persons may be required by the board to contribute to the Fund in accordance with this section in respect of any proceedings in connection with which they are granted civil legal aid.

(2)A legally assisted person’s contribution under this section shall be determined by the Board, and may include—

(a)if his disposable income exceeds [F67£3,415] a year, a contribution in respect of income which shall not be more than [F6867.1%] of the excess (or such other proportion of the excess, or such amount, as may be prescribed by regulations made under this section); and

(b)if his disposable capital exceeds [F69£7,617], a contribution in respect of capital which shall not be more than the excess (or such proportion of the excess or such lesser amount as may be prescribed by regulations made under this section).

[F70F71(2A)Except in so far as regulations made under this section otherwise provide, any sum of money recovered under an award of or an agreement as to expenses in favour of any party in any proceedings in respect of which he is or has been in receipt of civil legal aid shall be paid to the Board.

(2B)Except in so far as regulations made under this section otherwise provide, where, in any proceedings, there is a net liability of the Fund on the account of any party, the amount of that liability shall be paid to the Board by that party, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him—

(a)in the proceedings; or

(b)under any settlement to avoid them to bring them to an end.]

[F70(2C)Subsection (2D) below applies where, after applying sums paid to the Board under subsection (2A) above in respect of the expenses of any party in any proceedings—

(a)there is a surplus in the Fund on the account of the party; and

(b)the party received, in respect of the same proceedings, assistance from the Commission for Equality and Human Rights under section 28 of the Equality Act 2006 (power of the Commission to provide legal assistance).

(2D)The Board shall apply the surplus to pay to the Commission any sums due to it under section 29(2) of that Act (Commission's entitlement to recover expenses incurred in providing assistance) in respect of the assistance provided by it to the party.]

F72(3)–(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F67Words in s. 17(2)(a) substituted (12.4.2010 with application as mentioned in reg. 3(2) of the amending S.S.I.) by The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 4(7) (with reg. 8)

F68Words in s. 17(2)(a) substituted (12.4.2010 with application as mentioned in reg. 3(2) of the amending S.S.I.) by virtue of The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 5 (with reg. 8)

F69Words in s. 17(2)(b) substituted (12.4.2010 with application as mentioned in reg. 3(2) of the amending S.S.I.) by The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2010 (S.S.I. 2010/139), reg. 4(8) (with reg. 8)

F70S. 17(2C)(2D) inserted (1.10.2007) by Equality Act 2006 (c. 3), ss. 40, 93(1), Sch. 3 para. 39(3) (with s. 92); S.I. 2007/2603, art. 2(d)

Modifications etc. (not altering text)

C25S. 17 excluded by S.I. 1987/381, regs. 46(2)(a), 47(2)(a)

C27S. 17(2B) excluded (7.10.1996) by S.I. 1996/2444, reg. 33

18 Expenses of unassisted party.U.K.

F73(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The liability of a legally assisted person under an award of expenses [F74in any proceedings] shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay, having regard to all the circumstances including the means of all the parties and their conduct in connection with the dispute.

(3)None of the following, namely a legally assisted person’s house, wearing apparel, household furniture and the tools and implements of his trade or profession shall—

(a)be taken into account in assessing his means for the purposes of subsection (2) above; or

(b)be subject to diligence or any corresponding process in any part of the United Kingdom in connection with any award of expenses in proceedings to which this section applies,

except insofar as regulations made under this section may prescribe.

Textual Amendments

Modifications etc. (not altering text)

C28S. 18(2) applied by S.I. 1987/381, regs. 33, 35 and modified by S.I. 1987/381, reg. 36

S. 18(2) applied (S.) (7.10.1996) by S.I. 1996/2444, reg.34

S. 18(2) applied (S.) (1.12.2002) by S.S.I. 2002/494, reg.34

19 Expenses out of the Fund.S

(1)In any proceedings [F75to which a legally assisted person is party and which are finally decided in favour of an unassisted party], subject to subsections (2) and (3) below, the court may make an award out of the Fund to an unassisted party of the whole or any part of any expenses incurred by him (so far as attributable to any part of the proceedings in connection with which another party was a legally assisted person).

(2)Before making an order under this section, the court shall consider making an award of expenses against the legally assisted person.

(3)An order under this section may be made only if—

(a)an order for expenses might be made in the proceedings, apart from this Act; and

(b)in the case of expenses of proceedings in a court of first instance, those proceedings were instituted by the legally assisted person, and the court is satisfied that the unassisted party will suffer F76. . . financial hardship unless the order is made; and

(c)in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds.

(4)The provisions of subsection (3)(b) above regarding financial hardship may be modified, in their application to persons who are concerned in proceedings only in a fiduciary, representative or official capacity, by regulations made under this section.

(5)No appeal may be made against an order made under this section, or against a refusal to make such an order, except on a point of law.

(6)In this section, “expenses” means expenses as between party and party, and includes the expenses of applying for an order under this section.

Textual Amendments

Modifications etc. (not altering text)

C29S. 19(3)(b) modified by S.I. 1987/381, reg. 37

20 Provisions supplementary to sections 18 and 19.S

(1)For the purposes of [F77section]19 of this Act, civil proceedings are finally decided in favour of an unassisted party—

(a)if no appeal may be made against the decision in his favour;

(b)if an appeal may be made against the decision with leave, and the time limit for applications for leave expires and either no application has been made, or leave has been refused;

(c)if leave to appeal against the decision is granted or is not required and no appeal is made within the time limit for appeals; or

(d)if an appeal is made but is abandoned before it is determined.

(2)Where an appeal is allowed to be made late, the court by which the appeal (or any further appeal in those proceedings) is determined may make an order for the repayment by the unassisted party to the Fund of the whole or any part of any sum previously paid to him under section 19 of this Act in respect of those proceedings.

(3)Where a court decides any proceedings in favour of the unassisted party and an appeal may be made (with or without leave) against that decision, the court may, if it thinks fit, make or refuse to make an order under section 19 of this Act, but any order so made shall not take effect unless—

(a)where leave to appeal is required, the time limit for applications for leave to appeal expires and no application has been made or leave is refused;

(b)where leave to appeal is granted or is not required, the time limit for appeals expires without an appeal being made; or

(c)an appeal is made but is abandoned before it is determined.

(4)It shall be competent, at any time within such period after the making of an award of expenses to which section 18(2) of this Act applies as may be prescribed by regulations made under this section, for any party concerned with the award to apply to the court or tribunal which made the award for re-assessment of its amount, on the ground that since the award was made there has been a relevant change of circumstances, and on such application the court or tribunal may make such re-assessment of the amount of the award as seems to them proper.

Textual Amendments

Part IVS Criminal Legal Aid

21 Scope and nature of criminal legal aid.S

(1)This Part of this Act applies to legal aid in connection with—

(a)criminal proceedings before any of the following—

(i)the High Court of Justiciary;

(ii)the sheriff;

(iii)the district court;

[F78(aa)any case the referral of which is required, under section 2(6) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, by a [F79designated] life prisoner;]

and,

(b)any reference in connection with such proceedings under Article 177 of the EEC Treaty,

[F80(c)any reference, appeal or application for special leave to appeal to the [F81Supreme Court] under paragraph 11 or 13(a) of Schedule 6 to the Scotland Act 1998]

and such legal aid is referred to in this Act as “criminal legal aid”.

(2)The Secretary of State may, by regulations made under this section, prescribe by reference to such considerations as appear to him to be appropriate any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available.

(3)Subject to regulations made under this section, and to sections 22 and 23 of this Act, criminal legal aid shall not be available in connection with summary criminal proceedings until the conclusion of the first diet at which the accused has tendered a plea of not guilty.

(4)Criminal legal aid shall consist of representation, on terms provided for by this Act—

(a)by a solicitor and [F82, where appropriate,] by counsel;

(b)by a solicitor at any identification parade held, by or on behalf of the prosecutor (within the meaning of [F83section 307 of the Criminal Procedure (Scotland) Act 1995]), in connection with or in contemplation of criminal proceedings against the person so represented,

and shall include all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to criminal proceedings.

Textual Amendments

F78S. 21(1)(aa) inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 4 (with Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4).

F79Word in s. 21(1)(aa) substituted (20.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(5); S.I. 1997/2323, art. 3, Sch. 1

F80S. 21(1)(c) inserted (6.5.1999) by S.I. 1999/1042, art. 3, Sch. 1 Pt. I para. 11(2)

F81Words in s. 21(1)(c) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 85(2); S.I. 2009/1604 {art. 2(d)}

F82Words in s. 21(4) substituted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1)(2), Sch. 8 para. 36(10); S.I. 1991/2151, art. 3,Sch.

F83Words in s. 21(4) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(2)

22 Automatic availability of criminal legal aid.S

(1)Subject to regulations made under section 21(2) of this Act, criminal legal aid shall be available to every accused person—

(a)where he is given representation as mentioned in paragraph (b) of section 21(4) of this Act;

(b)where his case is being prosecuted under solemn procedure until either—

(i)an application for legal aid under section 23(1)(a) of this Act has been determined; or

(ii)he is admitted to bail or he is committed until liberated in due course of law,

whichever first occurs;

(c)where he is being prosecuted under summary procedure, and either is in custody or has been liberated under section 295(1)(a) of the Criminal Procedure (Scotland) Act 1975 (liberation by police on undertaking to appear)—

(i)until the conclusion of the first diet at which he tenders a plea of guilty or not guilty; or

(ii)where he has tendered a plea of guilty at that diet, until his case is finally disposed of;

(d)where he is in custody and he is being prosecuted under summary procedure and he has—

(i)tendered a plea of not guilty; and

(ii)made an application to the Board for legal aid in connection with the proceedings,

until his application has been determined by the Board; and

[F84(da)in relation to any proceedings under solemn or summary procedure whereby the court determines (whether or not on a plea by the accused person) whether he is insane so that his trial cannot proceed or continue;

(db)in relation to an examination of facts held under section 55 of the Criminal Procedure (Scotland) Act 1995 and the disposal of the case following such examination of facts;

(dc)in relation to any appeal under section 62 or 63 (appeal by, respectively, accused or prosecutor in case involving insanity) of that Act of 1995;

[F85(dd)where a solicitor has been appointed under section 288D of the Criminal Procedure (Scotland) Act 1995 (c.46)(appointment by court of solicitor for person accused of sexual offence and thereby prohibited from conducting defence in person) [F86or section 92(2), (2B)(b) or (2E) of that Act (appointment of solicitor for accused where the trial is to proceed in his absence)] to act on his instructions or in his interests;]]

[F87(de)where a solicitor has been appointed under subsection (4)(b) or (7) of section 150A (proceedings in absence of accused) of the Criminal Procedure (Scotland) Act 1995 to represent the accused's interests;]

(e)where he is being prosecuted under section 255 or 452B of the Criminal Procedure (Scotland) Act 1975 (new prosecution for the same or similar offence), until his case is finally disposed of.

[F88and, in relation to paragraph (dc) above, “accused person” includes a person authorised to institute or continue an appeal under section 303A(4) of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person).]

(2)Criminal legal aid made available in the circumstances referred to in paragraph (c)(i) of subsection (1) above shall also be available in connection with any steps taken in the making of and representation in connection with any application for liberation following upon the diet referred to in that paragraph.

Textual Amendments

F84S. 22(1)(da)-(dc) inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(3)

F85S. 22(1)(dd) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 2(2); S.S.I. 2002/443, art. 3 (with transitional provisions in art. 4(1)(2))

F88Words in s. 22(1) inserted (20.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(6); S.I. 1997/2323, art. 3, Sch.1

23 Power of the court to grant legal aid.S

(1)Criminal legal aid shall be available on an application made to the court—

(a)where a person is being prosecuted under solemn procedure; or

(b)where a person who has not previously been sentenced to imprisonment or detention has been convicted in summary proceedings, and the court is considering a sentence of imprisonment or detention or the imposition of imprisonment under section 396(2) of the M3Criminal Procedure (Scotland) Act 1975 (failure to pay a fine when no time for payment is allowed),

if the court is satisfied after consideration of the person’s financial circumstances that the expenses of the case cannot be met without undue hardship to him or his dependants.

(2)In subsection (1) above, “the court” means—

(a)in relation to solemn proceedings—

(i)the sheriff before whom the person is brought for examination; or

(ii)where criminal legal aid has not been made available at any earlier stage of the proceedings in a case before it, the High Court of Justiciary;

(b)in relation to summary proceedings, the court before which the proceedings are being taken,

and references in that subsection to detention shall be construed in accordance with [F89section 204(4)(b) of the Criminal Procedure (Scotland) Act 1995].

Textual Amendments

F89Words in s. 23(2) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(4)

Marginal Citations

Yn ddilys o 25/11/2010

[F9023ALegal aid in solemn proceedingsS

(1)Criminal legal aid shall be available on an application made to the Board, where a person is being prosecuted under solemn procedure, if the Board is satisfied after consideration of the person's financial circumstances that the expenses of the case cannot be met without undue hardship to the person or the person's dependants.

(2)Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.

(3)The Board may require a person receiving legal aid under subsection (1) to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive criminal legal aid.

(4)The Board shall establish a procedure under which any person whose application for legal aid under subsection (1) has been refused may apply to the Board for a review of the application.

(5)The Board shall establish a procedure under which any person receiving criminal legal aid under subsection (1) which is subject to conditions by virtue of subsection (2) may apply to the Board for a review of any such condition.]

Textual Amendments

24 Legal aid in summary proceedings.S

(1)Subject to regulations made under section 21(2) of this Act, to section 21(3) of this Act and to subsection (3) below, criminal legal aid shall be available to an accused person in summary proceedings on an application made to the Board if the Board is satisfied—

(a)after consideration of the financial circumstances of the accused person, that the expenses of the case cannot be met without undue hardship to him or his dependants; and

(b)that in all the circumstances of the case it is in the interests of justice that legal aid should be made available to him.

(2)The Board may require a person receiving criminal legal aid under this section to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is in the interests of justice for him to continue to receive criminal legal aid.

(3)The factors to be taken into account by the Board in determining whether it is in the interests of justice that criminal legal aid be made available in any case shall include—

(a)the offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty or lead to loss of his livelihood;

(b)the determination of the case may involve consideration of a substantial question of law, or of evidence of a complex or difficult nature;

(c)the accused may be unable to understand the proceedings or to state his own case because of his age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise;

(d)it is in the interests of someone other than the accused that the accused be legally represented;

(e)the defence to be advanced by the accused does not appear to be frivolous;

(f)the accused has been remanded in custody pending trial.

(4)The Secretary of State may, by regulations made under this section, vary the factors listed in subsection (3) above by amending factors in the list or by adding new factors to the list.

(5)The Board shall establish a procedure under which any person whose application for criminal legal aid in summary proceedings has been refused may apply to the Board for a review of his application.

(6)Where a person who is being prosecuted under summary procedure is not represented by a solicitor or counsel and has either—

(a)not applied for criminal legal aid in connection with proceedings; or

(b)applied for criminal legal aid but been refused it on the grounds that it is not in the interests of justice,

the court at the trial diet may, if it considers that owing to the exceptional circumstances of the case it would be inequitable to proceed with the trial without such representation and without legal aid being made available to him, adjourn the diet to enable an application for legal aid to be made to the Board, which shall consider the application expeditiously.

(7)Where the trial of an accused person is adjourned as is mentioned in subsection (6) above, and he has made an application to the Board, criminal legal aid shall be available to him until his application is determined by the Board.

(8)Where any person to whom criminal legal aid has been made available in pursuance of subsection (7) above has his application for criminal legal aid under subsection (6) above refused by the Board on the ground that it is satisfied that subsection (1)(a) above does not apply in his case, the Board may require him to pay to the Fund the whole or part of the amount of any sums paid out of the Fund under section 4(2)(a) of this Act in respect of the criminal legal aid so made available.

25 Legal aid in appeals.S

(1)This section shall apply to criminal legal aid in connection with an appeal against conviction, sentence [F91, other disposal] or acquittal in criminal proceedings [F92other than an appeal in relation to which section 22(1)(dc) of this Act applies].

(2)Subject to regulations made under section 21(2) of this Act criminal legal aid to which this section applies shall be available on an application made to the Board if the Board is satisfied—

(a)subject to subsection (4) below, [F93the Board is satisfied] after consideration of the financial circumstances of the applicant, that the expenses of the appeal cannot be met without undue hardship to the applicant or his dependants;

[F94(b)in the case of an appeal under section 106(1) or 175(2) of the Criminal Procedure (Scotland) Act 1995, leave to appeal is granted; and

(c)in the case of an appeal under any other provision of that Act, where the applicant is the appellant, the Board is satisfied that in all the circumstances of the case it is in the interests of justice that the applicant should receive criminal legal aid.]

[F95(2A)Where the Board has refused an application for criminal legal aid on the ground that it is not satisfied as mentioned in subsection (2)(c) above the High Court may, at any time prior to the disposal of an appeal, whether or not on application made to it, notwithstanding such refusal determine that it is in the interests of justice that the applicant should receive criminal legal aid in connection with the appeal, and the Board shall forthwith make such legal aid available to him.]

(3)The Board may require a person receiving criminal legal aid under this section to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive criminal legal aid.

(4)Subsection (2)(a) above does not apply where criminal legal aid was made available under section 23 or 24 of this Act in connection with the proceedings in respect of which the appeal is being made.

[F96(5)Subsections (2)(a), (3) and (4) above shall apply to an application for criminal legal aid in connection with consideration under section 107, 180 or 187 of the Criminal Procedure (Scotland) Act 1995 whether to grant leave to appeal as if—

(a)in subsection (2)(a), for the words “of the appeal” there were substituted the words “in connection with consideration whether to grant leave to appeal”; and

(b)in subsection (4), after the word “is” there were inserted the words “subject to leave being granted,”.

(6)Subsections (2)(a) and (c) and (2A) to (4) above shall apply to an application for criminal legal aid in connection with a petition to thenobile officium of the High Court of Justiciary (whether arising in the course of any proceedings or otherwise) as they apply for the purposes of subsection (1) above.

(7)Subsections (2)(a), (3) and (4) above shall apply to an application for criminal legal aid in connection with a reference by the [F97Scottish Criminal Cases Review Commission under section 194B] of the Criminal Procedure (Scotland) Act 1995 as they apply for the purposes of subsection (1) above.]

Textual Amendments

F91Words in s. 25(1) inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(5)(a)

F92Words in s. 25 inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(5)(b)

F93Words in s. 25(2)(a) inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(6)(a)

F94S. 25(2)(b)(c) substituted for s. 25(2)(b) and the preceding “and” (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(6)(b)

F95S. 25(2A) inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(7)

F96S. 25(5)-(7) substituted for s. 25(5) (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(8)

F97Words in s. 25(7) substituted (27.9.1999) by 1999 c. 22, ss. 34, 108(3)(a) (with Sch. 14 para. 7(2))

[F9825AA Legal aid in respect of appeals under section 303A of the 1995 Act.S

(1)Subject to the provisions of this section, [F99sections 25 and 25AB of this Act apply] to any appeal, within the meaning of section 303A of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person), instituted or continued by a person (an “authorised person”) authorised under subsection (4) of the said section 303A.

(2)Where an authorised person is continuing an appeal which has been instituted by the deceased person, and criminal legal aid, within the meaning of section 25, [F100or section 25AB] has been awarded to the deceased person in connection with any proceedings, such legal aid shall continue to be made available to the authorised person in respect of those proceedings.

(3)Where—

(a)the deceased person had applied for criminal legal aid within the meaning of section 25, [F100or section 25AB] but the application had not been determined prior to his death; or

(b)the deceased person had not applied for such legal aid,

the authorised person shall be regarded as the applicant and, in a case to which paragraph (b) applies, may apply for such legal aid.

(4)Notwithstanding subsection (3) above—

(a)in [F101sections 25(2)(a) and 25AB(2)] of this Act, where the authorised person is the executor of the deceased, any reference to—

(i)the financial circumstances of the applicant shall be construed as a reference to the value of the deceased person’s estate; and

(ii)the applicant’s dependants shall be construed as a reference to the beneficiaries of the deceased’s estate; and

(b)any reference in section 25(2)(c) or (2A) of this Act to whether it is in the interests of justice that the applicant should receive legal aid shall be construed as a reference to whether it would have been in the interests of justice that the deceased should have received legal aid.]

Textual Amendments

F99Words in s. 25AA(1) substituted (6.5.1999) by S.I. 1999/1042, art. 3, Sch. 1 Pt. I para. 11(3)(a)

F100Words in s. 25AA(2)(3)(a) inserted (6.5.1999) by S.I. 1999/1042, art. 3, Sch. 1 Pt. I para. 11(3)(b)(c)

F101Words in s. 25AA(4)(a) substituted (6.5.1999) by S.I. 1999/1042, art. 3, Sch. 1 Pt. I para. 11(3)(d)

[25ABF102Legal aid in references, appeals or applications for special leave to appeal to the [F103Supreme Court]S

(1)This section shall apply to criminal legal aid in connection with any reference, appeal or application for special leave to appeal to the [F103Supreme Court] under paragraph 11 [F104, 13(a) or 33] of Schedule 6 to the Scotland Act 1998.

(2)Subject to regulations made under section 21(2) of this Act criminal legal aid to which this section applies shall be available on an application made to the Board if–

(a)the Board is satisfied after consideration of the financial circumstances of the applicant that the expenses of the reference, appeal or application for special leave to appeal cannot be met without undue hardship to the applicant or his dependants; and

(b)in the case of an application for special leave to appeal, the Board is satisfied in all the circumstances of the case that it is in the interests of justice that the applicant should receive legal aid.

(3)The Board may require a person receiving criminal legal aid under this section to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive criminal legal aid.

(4)Criminal legal aid shall not be available under this section in connection with a reference under paragraph 11 [F105or 33] of Schedule 6 to the Scotland Act 1998 where criminal legal aid was made available under section 23, 24 or 25 of this Act in connection with the proceedings in which the reference is made.]

Textual Amendments

F102S. 25AB inserted (6.5.1999) by S.I. 1999/1042, art. 3, Sch. 1 Pt. I para. 11(4)

F103Words in s. 25AB sidenote and s. 25AB(1) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 85(3); S.I. 2009/1604, art. 2(d)

[F106 Part IVAS Criminal Legal Assistance]

Textual Amendments

F106Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

F107RegistrationS

Textual Amendments

F107Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

F10825A Criminal Legal Assistance Register.S

(1)The Board shall, in accordance with the provisions of this section, establish and maintain a Criminal Legal Assistance Register (“the Register”) of—

(a)solicitors who are eligible to provide criminal legal assistance; and

(b)subject to subsection (4) below, the firms with which the solicitors mentioned in paragraph (a) above are connected.

(2)A sole solicitor who wishes to provide criminal legal assistance shall require to be registered both as a solicitor and as a firm.

(3)Only those solicitors whose names appear on the Register may provide criminal legal assistance; and, subject to subsection (4) below, a solicitor may provide criminal legal assistance only when working in the course of a connection with a registered firm.

[F109(3A)A solicitor employed by the Board under sections 26 and 27 of this Act to provide criminal legal assistance shall require to be registered, and the entry relating to his name on the Register shall include a note that he is so employed; but the Board shall not be regarded as a firm for the purposes of this section, and shall not itself require to be registered.]

(4)A solicitor employed by the Board under section 28A of this Act shall require to be registered, and the entry relating to his name on the Register shall include a note that he is so employed; but the Board shall not be regarded as a firm for the purposes of this section, and shall not itself require to be registered.

(5)An application for entry on the Register shall be made in such form as the Board may determine, and shall be accompanied by such documents as the Board may specify, which shall include, in the case of a solicitor, a copy of his practising certificate.

(6)Before making any decisions as to the matters mentioned in subsection (5) above the Board shall—

(a)send to the Law Society and to such other persons and bodies as it considers appropriate a draft of its proposals in that regard, inviting their comments on those proposals within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify; and

(b)consider any such comments timeously received by it,

but, where it amends those proposals in the light of any such comments, it shall not be required to re-intimate the amended proposals to any of those who were invited to comment.

(7)Subject to subsection (15) below, where a solicitor is connected with a firm the Board shall not consider his application unless the firm—

(a)is already registered; or

(b)has also applied for registration.

(8)On receipt of an application the Board shall make such enquiries as it thinks appropriate for the purpose of determining whether the applicant complies with the relevant provisions of the code; and it may for that purpose use the powers conferred on it by section 35A of this Act.

(9)Subject to subsection (10) below, where the Board is satisfied that an applicant complies with the code and, in the case of a solicitor, is not otherwise disqualified from providing criminal legal assistance, it shall make the appropriate entry on the Register.

(10)Subject to subsection (15) below, where a solicitor is connected with a firm, the Board shall not enter his name on the Register unless the firm’s name is already entered on the Register.

(11)Where a solicitor is connected with a firm or firms, the name or names of which appear on the Register, the entry relating to that solicitor shall include the name of that firm or those firms.

(12)Where the Board decides to refuse an application it shall forthwith intimate that decision to the applicant, and shall as soon as practicable thereafter send him or them, by recorded delivery, a written note of its reasons.

(13)An applicant aggrieved by a decision of the Board to refuse registration may, within 21 days of the receipt of the notification of the Board’s reasons under subsection (12) above, appeal to the Court of Session against that decision.

(14)An appeal under subsection (13) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit.

(15)Where a solicitor who is seeking registration, or is registered, is connected with more than one firm the requirements of subsections (7) and (10) above shall be satisfied if one of those firms has applied for registration or, as the case may be, is registered.

Textual Amendments

F108Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s. 49; S.I. 1997/2323, art. 6 Sch. 3

F109S. 25A(3A) inserted (6.7.2001) by 2001 asp 7, ss. 9(4), 15(3)

F110Code of practiceS

Textual Amendments

F110Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

F11125B Code of practice in relation to criminal legal assistance.S

(1)The Board shall prepare a draft code of practice in relation to the carrying out by solicitors of their functions with regard to the provision of criminal legal assistance and, without prejudice to the generality of the foregoing, the code may include provision as to—

(a)the conditions to be complied with in order to qualify for registration, including—

(i)the attendance by the solicitor at a sufficient number of specified courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics;

(ii)the keeping of records in a particular format;

(b)the standards of conduct expected of a solicitor providing or proposing to provide criminal legal assistance;

(c)the manner in which a solicitor should conduct a case and represent his client, including—

(i)the passage of timeous and accurate information to the client in relation to his case;

(ii)the frequency of meetings with the client;

(iii)the giving of advice to the client as to the consequences of any decision made by the client in relation to his defence;

(iv)the taking of such precognitions as may be necessary;

(v)the conduct of relations with the prosecution;

(d)the manner in which applications for criminal legal assistance are to be presented;

(e)the monitoring of a solicitor’s performance with a view to a decision by the Board as to whether he should continue to be registered, including—

(i)periodic review of his handling of particular cases by other solicitors or by the Board;

(ii)the extent to which he attends courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics;

(f)the manner in which records are kept, including—

(i)maintaining books of account, and presentation of accounts to the Board, in a specified format;

(ii)office procedures;

(iii)time recording systems;

(iv)instructions given to the staff,

and any other matter relating to the organisation of or accounting for criminal legal assistance which appears to the Board to be relevant.

(2)The code may make different provision in relation to firms and solicitors including [F112in relation to solicitors employed by the Board under sections 26 and 27 of this Act to provide criminal legal assistance, different provision to reflect the fact that they are so employed and including], in relation to solicitors employed by the Board by virtue of section 28A of this Act, different provision to reflect the fact that they are so employed.

(3)The Board shall—

(a)send a copy of the draft code prepared by it under subsection (1) above to the Law Society and to such other persons and bodies as it considers appropriate, inviting their comments on the draft within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify; and

(b)consider any such comments timeously received by it,

but, where it amends the draft code in the light of any such comments, it shall not be required to re-intimate the amended code to any of those who were invited to comment.

(4)After carrying out the consultation mentioned in subsection (3) above the Board shall submit the draft code to the Secretary of State for his approval.

(5)The Secretary of State may approve the draft code, with or without modifications.

(6)When the Secretary of State has approved the draft code under subsection (5) above he shall—

(a)return the draft to the Board; and

(b)specify the date upon which it is to come into force and how the Board is to publish it.

(7)The Board—

(a)shall make and publish the code by the date and in the manner specified by the Secretary of State under subsection (6) above; and

(b)may make a copy of the code available to any person requesting one, on payment of such sum, if any, towards the cost of preparation, publication and, where relevant, postage, as it considers appropriate.

(8)The Board shall keep under review the code prepared under this section and may from time to time revise it, and the provisions of this section shall apply in relation to any revision of the code as they apply in relation to the version originally prepared.

Textual Amendments

F111Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s. 49; S.I. 1997/2323, art. 6 Sch. 3

F112Words in s. 25B(2) inserted (6.7.2001) by 2001 asp 7, ss. 9(5), 15(3)

F11325C Supervision of registered solicitors and firms.S

(1)Solicitors and firms whose names appear on the Register (“registered solicitors” and “registered firms”) shall comply with the requirements of the code.

(2)The Board shall monitor the carrying out by registered solicitors and firms of their duty under subsection (1) above.

(3)For the purpose of carrying out its duty under subsection (2) above the Board may use the powers conferred on it by sections 35A and 35B of this Act.

Textual Amendments

F113Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

F114Removal of name from RegisterS

Textual Amendments

F114Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

F11525D Removal of name from Register following failure to comply with code.S

(1)Where it appears to the Board (whether or not following a complaint made to it) that a registered firm or solicitor may not be [F116, or may not have been,] complying with the code, it shall investigate the matter in such manner as it thinks fit, and shall give the firm or solicitor concerned an opportunity to make representations.

(2)For the purpose of carrying out its duty under subsection (1) above the Board may use the powers conferred on it by sections 35A and 35B of this Act.

(3)Following an investigation under subsection (1) above, the Board may give the firm or solicitor concerned an opportunity, within such time as it may specify, to remedy any defect in their or his compliance with the code.

(4)Where, after carrying out the procedures mentioned in subsection (1) above and, where a time limit has been set under subsection (3) above, after the expiry of that time limit, the Board is satisfied that—

(a)the firm are not complying with the code, it shall remove the names of the firm and, subject to subsection (5) below, of any registered solicitors connected with the firm from the Register;

(b)the solicitor is not complying with the code, it shall remove his name from the Register.

[F117(4A)Where, after carrying out the procedures mentioned in subsection (1) above and, where a time limit has been set under subsection (3) above, after the expiry of that time limit, the Board is satisfied that, regardless of whether or not there is current compliance with the code—

(a)the firm have not complied with the code in a material regard, it may remove the names of the firm and, subject to subsection (5) below, of any registered solicitors connected with the firm from the Register;

(b)the solicitor has not complied with the code in a material regard, it may remove his name from the Register.]

(5)Where a registered solicitor mentioned in subsection (4)(a) [F118or (4A)(a)] above is also connected with another registered firm, the Board shall not remove his name from the Register, but shall alter the entry against his name in the Register so as to remove therefrom the name of the firm whose name has been removed from the Register.

(6)Where the Board removes the name of a solicitor from the Register the solicitor shall—

(a)[F119within such period of time as the Board shall direct (in the case concerned) and] in accordance with arrangements approved by the Board, F120. . . and without waiting for the resolution of any appeal, transfer—

(i)any work currently being undertaken by him for any client by way of criminal legal assistance; and

(ii)notwithstanding any lien to which he might otherwise be entitled, any documents connected with any such work,

to a registered solicitor; and

(b)in accordance with section 25A(3) of this Act, stop providing criminal legal assistance.

(7)Where the Board removes the name of a firm or solicitor from the Register it shall forthwith intimate that removal to the firm or solicitor concerned, and shall as soon as practicable thereafter send them or him, by recorded delivery, a written note of its reasons for its decision.

(8)A firm or solicitor aggrieved by a decision of the Board under subsection (4) [F121or (4A)] above may, within 21 days of the receipt of the notification under subsection (7) above, appeal to the Court of Session against that decision.

(9)An appeal under subsection (8) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit; but the making of such an appeal shall not have the effect of restoring the firm’s or solicitor’s name to the Register.

Textual Amendments

F115Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

F12225E Further provision as to removal of name from Register.S

(1)Where the Board is satisfied, whether on being so informed by the solicitor concerned or not, that a registered solicitor—

(a)has become connected with an unregistered firm; and

(b)is no longer connected with a registered firm,

it shall remove his name from the Register.

(2)Subsections (6) to (9) of section 25D of this Act apply in relation to a solicitor whose name is removed from the Register under subsection (1) above as they apply in relation to a solicitor whose name is removed from the Register under subsection (4) of that section.

Textual Amendments

F122Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

F12325F Publication of Register.S

(1)The Board shall make available for inspection, without charge—

(a)the Register;

(b)any decision refusing an application for entry on the Register; and

(c)any decision removing the name of a firm or solicitor from the Register,

and the publication of a decision such as is mentioned in paragraphs (b) or (c) above shall be accompanied by a statement of the reasons for the decision.

(2)The Board shall, as soon as is practicable after 1st December in each year, send a copy of the current Register to the Secretary of the Law Society.

(3)When any change is made to the Register in the course of a year, the Board shall, as soon as is practicable, send written notice of that change to the Secretary of the Law Society.

Textual Amendments

F123Pt. IVA (ss. 25A-25F) inserted (1.10.1997 for specified purposes, 1.4.1998 for further specified purposes and otherwise 1.10.1998) by 1997 c. 48, s.49; S.I. 1997/2323, art. 6 Sch.3

Part VS Employment of Solicitors by the Board

26 Employment to which Part V applies.S

(1)This Part of this Act applies to the employment of solicitors by the Board for any of the following purposes—

(a)giving advice and assistance to which Part II of this Act applies [F124either generally or in cases of any such description as may be prescribed by regulations made under this section];

(b)acting for persons receiving legal aid, either generally or in cases of any such description as may be prescribed by regulations made under this section;

(c)providing any such services as are mentioned in subsection (2) below.

(2)The services referred to in subsection (1)(c) above are services provided by a solicitor for or in connection with any F125. . . organisation and consisting of—

(a)assisting the organisation in [F126any function it has] of giving advice and guidance to applicants;

(b)promoting contacts between the organisation and solicitors practising in the locality for which the organisation is established, with a view to enabling applicants to obtain the professional services of those solicitors in cases where those services are required;

(c)giving oral advice to applicants, instead of referring them to other solicitors, in cases which can be readily disposed of by such advice.

(3)In subsection (2) above—

(a)“F127. . . organisation” means an organisation concerned [F128(whether wholly or partly)] in the giving of advice or guidance (whether generally or with respect to any particular classes of matters) to persons residing in the locality for which the organisation is established; and

(b)“applicants”, in relation to such an organisation, means persons who apply to the organisation for advice or guidance or are referred to it with a view to their receiving advice or guidance from it.

(4)In this section “organisation” includes a branch or section of an organisation; and, in relation to such a branch or section, any reference to the locality for which the organisation is established shall be construed as a reference to the locality for which the branch or section is established.

Textual Amendments

F124Words in s. 26(1)(a) added (6.7.2001) by 2001 asp 7, ss. 9(6), 15(3)

27 Arrangements for employment to which Part V applies.S

(1)The Secretary of State may, by regulations made under this section, make provision as to the employment of solicitors under this Part of this Act and as to the circumstances in which solicitors may be so employed.

[F129(1A)The provisions of paragraph 8 of Schedule 1 to this Act shall apply to solicitors employed by the Board by virtue of subsection (1) as they apply to employees appointed by the Board under that paragraph.]

(2)F130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)F130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

28 General provisions relating to employment to which Part V applies.S

(1)In relation to any solicitor who is employed by the Board in employment to which this Part of this Act applies, and in relation to any work performed, or other thing done or omitted to be done, by any such solicitor in the course of that employment—

(a)the enactments relating to solicitors, and

(b)any rule of law which relates to solicitors, or is applicable to things done, or omitted to be done, by solicitors in their capacity as solicitors,

shall have effect as if the Board were a firm of solicitors.

(2)Nothing in subsection (1) above shall prohibit 2 or more solicitors employed by the Board in employment to which this Part of this Act applies from acting (including acting in any proceedings) for different parties having opposing or otherwise different interests in relation to the same matter.

[F13128A Power of Board to employ solicitors to provide criminal assistance.S

(1)The Secretary of State may, in accordance with the provisions of this section, provide for the carrying out of a study into the feasibility of providing criminal legal assistance by means of solicitors employed directly by the Board and, accordingly, may by regulations made under this section empower the Board to employ solicitors for the purpose of providing criminal legal assistance.

(2)F132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)F132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The provisions of paragraph 8 of Schedule 1 to this Act shall apply to solicitors employed by the Board by virtue of this section as they apply to employees appointed by the Board under that paragraph.

(5)Regulations made by the Secretary of State under this section may make such provision as appears to him to be appropriate for the purposes of this section and, without prejudice to the generality of the foregoing, may—

(a)specify in which area or areas employed solicitors are to be used; and

(b)make different provision in relation to different areas.

(6)Regulations under this section may provide that where the Board has by virtue of this section employed solicitors to provide criminal legal assistance in any area, the Board may, subject to subsection (7) below, require as many of the persons seeking criminal legal assistance in that area as it considers appropriate to instruct the solicitors employed by it.

(7)In requiring persons seeking criminal legal assistance to instruct solicitors employed by the Board, the Board shall, where there is or may be a conflict of interest, make provision for any particular person to be re-allocated to another solicitor or, where registration is in force, to a registered solicitor in the area.

(8)Regulations made under this section may make such transitional and consequential provisions and savings as appear to the Secretary of State to be necessary or expedient.

(9)Sections 26, 27 and 28 of this Act shall not apply in relation to solicitors employed by the Board by virtue of this section.

[F133(9A)Before 31st December 2008, the Scottish Ministers shall lay before the Parliament a report on the progress of the feasibility study.]

(10)F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12)F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13)F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(14)F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F135(15)F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F131S. 28A inserted (1.10.1997) by 1997 c. 48, s. 50; S.I. 1997/2323, art. 6, Sch. 3

F135S. 28A(15) inserted (6.7.2001) by 2001 asp 7, ss. 9(7)(b), 15(3)

Part VIS Miscellaneous

Proceedings in relation to childrenS

[F13629 Legal aid in respect of certain proceedings relating to children.S

(1)This section applies to legal aid in connection with—

(a)proceedings before the sheriff (including, without prejudice to that generality, proceedings on an appeal to the sheriff principal from a decision of the sheriff) in respect of any matter arising under Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 (in this section referred to as “the 1995 Act”); or

(b)an appeal to the Court of Session in connection with such proceedings.

(2)Subject to subsections (3) to (5) below, legal aid to which this section applies shall be available to a child and any relevant person in relation to him in connection with—

(a)proceedings before the sheriff on an application for a child protection order or child assessment order, or for the variation or recall of such an order;

(b)an appeal to the sheriff under section 51 of the 1995 Act against—

(i)a decision of a children’s hearing to grant a warrant such as is mentioned in subsection (5)(a) of that subsection; or

(ii)any other decision of a children’s hearing;

(c)an application—

(i)by virtue of section 65(7) or (9) of the 1995 Act for a finding as to whether the grounds for a referral are established; or

(ii)under section 85 of the 1995 Act for a review of such a finding;

(d)an appeal to the sheriff principal or to Court of Session under section 51 of the 1995 Act.

(3)Legal aid shall be available under subsection (2)(b)(i) above on an application made to the sheriff without inquiry into the resources of the child or the relevant person.

(4)Legal aid shall be available under subsection (2)(a),(b)(ii) or (c) above on an application made to the sheriff if the sheriff is satisfied—

(a)that it is in the interests of the child that legal aid be made available; and

(b)after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the case cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them.

(5)Legal aid shall be available under subsection (2)(d) above on an application made to the Board if it is satisfied—

(a)after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the appeal cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them; and

(b)that the child, or as the case may be the relevant person has substantial grounds for making or responding to the appeal and it is reasonable, in the particular circumstances of the case, that legal aid should be made available accordingly.

(6)The Board may require a person receiving legal aid under subsection (2)(d) above or subsection (9) below to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive such legal aid.

(7)Subject to subsection (8) below, legal aid to which this section applies shall be available in connection with proceedings before the sheriff on an application for an exclusion order (or for the variation or recall of such an order) to—

(a)a child;

(b)a relevant person in relation to a child;

(c)a person who is a named person, or will be such a person if the application is granted;

(d)a spouse or partner of a person mentioned in paragraph (c) above; and

(e)a person who is an appropriate person, or will be such a person if the application is granted.

(8)Legal aid shall be available under subsection (7) above on an application to the sheriff if the sheriff is satisfied after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him that the expenses of the case cannot be met without undue hardship to the applicant or any dependant of the applicant.

(9)Legal aid shall be available in connection with any appeal from a decision of the sheriff on an application for an exclusion order or for the variation or recall of such an order to any of the persons mentioned in paragraphs (a) to (e) of subsection (7) above on an application to the Board if it is satisfied—

(a)after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him, that the expenses of the appeal cannot be met without undue hardship to the applicant or any dependant of the applicant; and

(b)that the applicant has substantial grounds for making or responding to the appeal and that it is reasonable, in the particular circumstances of the case, that legal aid should be made available accordingly.

(10)Where in connection with any proceedings—

(a)the sheriff has been satisfied as is mentioned in subsection (4)(b) or subsection (8) above; or

(b)the Board has been satisfied as is mentioned in subsection (5)(a) or subsection (9)(a) above,

and has made legal aid available to any person, it shall not be necessary for the sheriff or, as the case may be, the Board to be so satisfied in respect of an application for legal aid by such a person in connection with any subsequent proceedings arising from such proceedings.

(11)Legal aid to which this section applies shall consist of representation by a solicitor and, where appropriate, by counsel in any proceedings (including any appeal) mentioned in subsection (1) above and shall include all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to such proceedings.

(12)In this section—

(a)“child” and “relevant person” have the meanings given by section 93(2)(b) of the 1995 Act;

(b)“child protection order”, “child assessment order” and “exclusion order” have the meanings given by section 93(1) of that Act;

(c)“named person” and “appropriate person” have the meanings given by section 76 of that Act; and

(d)“partner” shall be construed in accordance with section 79(4) of that Act.]

Textual Amendments

F136S. 29 substituted (1.4.1997) by 1995 c. 36, s.92 (with ss. 90, 103(1)); S.I. 1996/3201, art. 3(7)

Modifications etc. (not altering text)

C30S. 29(5)(9) excluded (1.4.1997) by S.I. 1997/690, reg. 8(1)

Contempt of courtS

30 Legal aid in contempt proceedings.S

(1)Where a person is liable to be dealt with for contempt of court during the course of or in connection with any proceedings, legal aid shall be available to him on an application being made to the court if it is satisfied—

(a)after consideration of the person’s financial circumstances that the expenses of the proceedings for contempt of court cannot be met without undue hardship to him or his dependants; and

(b)that in all the circumstances of the case it is in the interests of justice that legal aid should be made available to him.

(2)In making legal aid available under subsection (1) above, the court may order in any case that the legal aid shall consist of representation by counsel only or, in a court where solicitors have a right of audience, by a solicitor only; and, notwithstanding section 31 of this Act, the court may assign for the purpose any counsel or solicitor who is within the precincts of the court at the time when the order is made.

(3)[F137Subsections (2)(a) and (c), (2A) to (4) and (6) of] section 25 of this Act shall apply in relation to legal aid in connection with an appeal against a decision of a court in proceedings for contempt of court as [F138they apply] in relation to legal aid in connection with an appeal against conviction, sentence [F139, other disposal] or acquittal in criminal proceedings, and in such application—

[F140(za)in subsection (2a) of that section, the reference to the High Court shall include a reference to the Court of Session;]

(a)for the reference in subsection (4) of that section to criminal legal aid having been made available under section 23 or 24 of this Act there shall be substituted a reference to legal aid having been made available under subsection (1) above; and

(b)in subsection [F141(6)] of that section the reference to thenobile officium of the High Court of Justiciary shall include a reference to thenobile officium of the Court of Session.

(4)Subject to subsection (2) above legal aid made available under this section shall consist of representation by a solicitor and [F142, where appropriate,]by counsel and shall include all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to proceedings for contempt of court or, in the case of legal aid made available under subsection (3) above, any appeal in connection with such proceedings.

Textual Amendments

F137Words in s. 30(3) inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(9)(a)

F138Words in s. 30(3) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(9)(b)

F139Words in s. 30(3) expressed to be substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(9)(c)

F140S. 30(3)(za) inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(9)(d)

F141Word in s. 30(3)(b) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(9)(e)

F142Words in s. 30(4) substituted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 36(12); S.I. 1991/2151, art. 3,Sch.

Commencement Information

I1S. 30 wholly in force at 01.07.1992 see s. 46(2) and S.I. 1992/1226.

Solicitors and counselS

31 Solicitors and counsel.S

(1)[F143Subject to subsection (1A) below,] a person to whom legal aid or advice and assistance is made available may select—

(a)the solicitor to advise or act for him; and

(b)if the case requires counsel, [F144or a solicitor holding rights of audience by virtue of section 25A (rights of audience) of the Solicitor (Scotland) Act 1980, his counsel or such a solicitor],

and he shall be entitled to make the selection himself.

[F145(1A)Subsection (1) above is subject to—

(a)section 25A(3) of this Act;

(b)section 30(2) of this Act;

(c)regulations made under section 28A(6) of this Act;

(d)regulations made under section 33A(4) of this Act; F146. . .

(e)regulations made under subsection (9) below[F147and does not apply where the person is being provided with criminal legal assistance by a solicitor employed by the Board under section 26 and 27 of this Act][F148; and

(f)[F149sections 92(2), (2B)(b), (2D) and (2E) [F150, 150A(4)(b), (6) and (7)] and] 288D of the Criminal Procedure (Scotland) Act 1995 (c.46)]]

(2)Nothing in subsection (1) above shall prejudice any right of a solicitor or advocate to refuse or give up a case or to entrust it to another solicitor or advocate.

(3)The relevant body may decide to exclude any advocate or solicitor either from being selected under subsection (1) above, or from giving advice and assistance to or from acting for a person to whom legal aid is made available on the ground that there is good reason for excluding him arising out of—

(a)his conduct when acting or selected to act for persons to whom legal aid or advice and assistance is made available;

(b)his professional conduct generally;

(c)in the case of a member of a firm of solicitors or a director of an incorporated practice, such conduct on the part of any person who is for the time being a member of the firm or a director of the practice.

(4)The relevant body may decide to exclude a solicitor or advocate under subsection (3) above in respect of any specified period or without limit of time.

(5)A solicitor or advocate who is aggrieved by a decision of the relevant body under subsection (3) above may appeal against his exclusion or the period of such exclusion to the Court of Session; and the court in determining such an appeal may make such order as it thinks fit.

(6)Where the relevant body decides or the Court of Session, on an appeal against such a decision, orders that an advocate or solicitor be excluded under subsection (3) above, the relevant body shall inform the Board of the decision or order.

(7)Except in so far as expressly provided under this Act, the fact that the services of counsel or a solicitor are given by way of legal aid or advice and assistance shall not affect the relationship between or the respective rights in that connection of counsel, solicitor and client.

(8)The Board may arrange that, in such circumstances as it may specify, a solicitor shall be available for the purposes of providing legal aid or advice and assistance.

(9)Where a solicitor is available as is mentioned in subsection (8) above, the Secretary of State may, by regulations made under this section, provide that—

(a)subsection (1) above shall not apply; and

(b)[F151Subject to subsection (11) below,] legal aid or, as the case may be, advice and assistance shall be provided only by the solicitor so made available.

(10)In this section, “the relevant body” means—

(a)in relation to an advocate, the Faculty of Advocates;

(b)in relation to a solicitor, the Law Society or the Scottish Solicitors’ Discipline Tribunal,

and in considering whether to exclude a solicitor under subsection (3) above, section 52 of and Part II of Schedule 4 to the M4Solicitors (Scotland) Act 1980 shall apply in relation to the procedure of that Tribunal as they apply in relation to its procedure in respect of a complaint under section 51(1) of that Act.

[F152(11)Nothing in subsection (9)(b) above shall enable the Secretary of State to make regulations authorising the granting of legal aid only to solicitors holding rights of audience under section 25A (rights of audience) of the Solicitors (Scotland) Act 1980.]

Textual Amendments

F143Words in s. 31(1) substituted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(8)(a); S.I. 1997/2323, art. 6(2)

F144Words in s. 31(1) substituted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 36(13); S.I. 1991/2151, art. 3, Sch.

F147Words in s. 31(1A) added (6.7.2001) by 2001 asp 7, ss. 9(8), 15(3)

F148S. 31(1A)(f) and preceding word inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 2(3)(b); S.S.I. 2002/443, art. 3 (with transitional provisions in art. 4(1)(2))

F151Words in s. 31(9)(b) inserted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 36(14); S.I. 1991/2151, art. 3, Sch.

F152S. 31(11) inserted (30.9.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2) s. 74(1), Sch. 8 para. 36(15); S.I. 1991/2151, art. 3, Sch.

Modifications etc. (not altering text)

C31S. 31(1) excluded (6.2.2002) by S.S.I. 2001/464, reg. 2(a)

Marginal Citations

32 Restriction on payment and employment of solicitor or counsel.S

Where legal aid is available to a person in connection with any proceedings (whether legal aid is available in connection with all or only part of the proceedings)—

(a)the solicitor or counsel providing legal aid shall not take any payment in respect of any advice given or anything done in connection with such proceedings during any period when legal aid was so available except for such payment as may be made, in accordance with this Act . . . F153; and

(b)except as is mentioned in section 31(2) of this Act, no solicitor or counsel other than the solicitor or counsel referred to in paragraph (a) above shall advise or act for him in connection with the proceedings.

Textual Amendments

33 Fees and outlays of solicitors and counsel.S

(1)[F154Subject to subsections (3A) and (3B) below,] any solicitor or counsel who acts for any person by providing legal aid or advice and assistance under this Act shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by him in so acting.

[F155(1A)A registered organisation shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by it in respect of the advisers it approves providing advice and assistance under this Act.]

(2)The Secretary of State may, by regulations made under this section, make such provision as seems to him appropriate in respect of the fees and outlays of solicitors and counsel [F156and, in respect of advice and assistance as mentioned in paragraph (b) of this subsection, advisers]—

(a)acting in any proceedings for a person to whom legal aid has been made available; or

(b)providing advice and assistance in accordance with Part II of this Act.

(3)Without prejudice to the generality of subsection (2) above, regulations made under this section may—

(a)prescribe the work in respect of which fees may be charged;

(b)prescribe rates or scales of payment of fees and outlays allowable and the conditions under which such fees and outlays may be allowed;

(c)provide for the assessment and taxation of fees and outlays, and for the review of any such assessmen or taxation, either by the Secretary of State or by any other person;

(d)prescribe general principles to be applied in connection with any such assessment, taxation or review;

(e)prescribe forms to be used for the purposes of any regulations made under this section; and

(f)make different provision for different cases.

[F157(3A)The Secretary of State may by regulations under this section prescribe fixed payments to be made to a solicitor in respect of—

(a)his professional services in providing criminal legal assistance; and

(b)such outlays as may be so prescribed.

[F158(3AA)Regulations amending or replacing regulations made under subsection (3A) above may, for the purpose specified in subsection (3AB) below, make provision as to fixed payments in relation to criminal legal assistance provided in relation to proceedings commenced before and continuing as at the date of the making or coming into force of the amendment or replacement of the regulations.

(3AB)The purpose referred to in subsection (3AA) above is that of ensuring that persons to whom fixed payment criminal legal assistance is being provided are not, by reason of the amount of the fixed payments payable in respect of that criminal legal assistance under the regulations as they have effect immediately before the coming into force of the amendment or replacement of the regulations, deprived of the right to a fair trial.

(3AC)In subsection (3AB) above “fixed payment criminal legal assistance” and “fixed payments” have respectively the meanings given by subsection (3E) below;]

(3B)A solicitor who provides any criminal legal assistance in respect of which a fixed payment has been prescribed in regulations made under subsection (3A) above shall not be entitled to any other payment out of the Fund in respect of the professional services and outlays mentioned in that subsection, but shall be entitled to reimbursement of any other outlays which he has properly incurred.]

[F159(3C)The Scottish Ministers may, however, for the purpose of enabling the Board to ensure that a person to whom fixed payment criminal legal assistance is provided is not, for the reason specified in subsection (3D) below, deprived of the right to a fair trial, by regulations under this subsection, provide that—

(a)in such circumstances; and

(b)under such conditions,

as may be prescribed by the regulations, a solicitor who provides such criminal legal assistance shall, instead of receiving fixed payments, be paid out of the Fund in accordance with regulations made under subsections (2) and (3) above.

(3D)The reason referred to in subsection (3C) above is the amount of the fixed payments payable for the criminal legal assistance provided.

(3E)In subsection (3C) above—

  • “fixed payment criminal legal assistance” means criminal legal assistance in respect of which fixed payments are prescribed under subsection (3A) above;

  • “fixed payments” means fixed payments so prescribed.

(3F)Regulations made under subsection (3C) above shall provide that it is for the Board to determine whether any prescribed circumstances exist and whether any prescribed conditions are met.

(3G)Circumstances may be prescribed under subsection (3C)(a) above by reference to such factors as the Scottish Ministers think fit.

(3H)The conditions which may be prescribed under subsection (3C)(b) above include those which stipulate that a solicitor providing criminal legal assistance—

(a)applies to the Board to exercise its power of determination under subsection (3F) above;

(b)does so in such manner and form as the Board may specify and at as early a stage in the provision of the criminal legal assistance as is reasonably practicable; and

(c)keeps proper records of all professional services provided by way of and outlays incurred in the provision of that criminal legal assistance, whether before or after the exercise of that power of determination.

(3J)Regulations may be made under subsection (3C) above so as to relate to criminal legal assistance provided in relation to proceedings commenced before and continuing as at the date of coming into force of section 7 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), and regulations so relating may disapply any condition which would otherwise apply under subsection (3C)(b) above.

(3K)The Board shall establish a procedure under which any person—

(a)whose solicitor’s application under subsection (3H) above has been refused; or

(b)on whose solicitor’s application under that subsection the Board has made a determination which is such that the solicitor will not be paid out of the Fund in accordance with regulations made under subsections (2) and (3) above,

may apply to the Board for review of that refusal or determination.]

(4)In subsection (1) above the reference to acting for a person includes, in relation to a solicitor, a reference to acting for such a person on the instructions of another solicitor.

(5)Where a person is in receipt of legal aid in connection with any proceedings, any expenses incurred in connection with the proceedings which would, if he were not in receipt of legal aid, be paid, in the first instance, by or on behalf of the solicitor acting for him, shall be so paid.

Textual Amendments

F154Words in s. 33(1) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(9); S.I. 1997/2323, art. 6(2)

F157S. 33(3A)(3B) inserted (1.10.1997) by 1997 c. 48, s. 51; S.I. 1997/2323, art. 6, Sch. 3

F158S. 33(3AA)-(3AC) inserted (6.7.2001) by 2001 asp 7, ss. 8, 15(3)

F159S. 33(3C)-(3K) inserted (6.7.2001) by 2001 asp 7, ss. 7, 15(3)

[F160 Contracts for the provision of criminal legal assistanceS

Textual Amendments

F160S. 33A and crossheading inserted (1.10.1997) by 1997 c. 48, s.52; S.I. 1997/2323, art. 6, Sch.3

F16133A Contracts for the provision of criminal legal assistance.S

(1)The Secretary of State may by regulations made under this section empower the Board to enter into contracts with registered firms for the provision by registered solicitors connected with those firms of criminal legal assistance.

(2)Regulations under this section may prescribe—

(a)the procedures to be followed by the Board in awarding any such contract; and

(b)subject to subsection (3) below, any terms and conditions which are to be included in any such contract.

(3)Regulations under this section shall provide that any contract entered into by virtue of this section shall include a provision that, in the event of the termination of the contract, or a breach of it by the registered firm concerned, the Board may—

(a)withhold payments under the contract; and

(b)require the firm to secure the transfer of—

(i)any work currently being undertaken by any solicitor connected with them for any client by way of criminal legal assistance; and

(ii)notwithstanding any lien to which any such solicitor might otherwise be entitled, any documents connected with any such work,

to a registered solicitor.

(4)Regulations under this section may provide that where the Board has by virtue of this section entered into contracts with any registered firms for the provision of criminal legal assistance in any area, then, unless it seems to the Board to be inappropriate in a particular case, any person seeking such assistance in that area shall be required to instruct a registered solicitor connected with one of those firms.

(5)Any money due to a firm under a contract made by virtue of this section shall be paid to the firm—

(a)firstly, out of any amount payable by the client in accordance with section 11(2) of this Act;

(b)secondly, in priority to all other debts, out of any expenses which by virtue of an order of a criminal court are payable to that client by any other person in respect of the matter in connection with which the criminal legal assistance was given; and

(c)thirdly, by the Board out of the Fund.

(6)For the purposes of sections 32 and 33 of this Act, the money paid to a firm, as provided in subsection (5) above, in respect of a contract made by virtue of this section shall be taken to be a payment made in accordance with this Act, and no solicitor connected with such a firm shall be entitled to any other payment out of the Fund in respect of any work done by him by virtue of such a contract.]

Textual Amendments

F161S. 33A and crossheading inserted (1.10.1997) by 1997 c. 48, s.52; S.I. 1997/2323, art. 6, Sch.3

InformationS

34 Confidentiality of information.S

(1)Subject to subsection (2) below, no information furnished for the purposes of this Act to the Board or to any person acting on its behalf shall be disclosed—

(a)in the case of such information furnished by, or by any person acting for, a person seeking or receiving legal aid or advice and assistance, without the consent of the person seeking or receiving legal aid or advice and assistance; or

(b)in the case of such information furnished otherwise than as mentioned in paragraph (a) above, without the consent of the person who furnished it,

and any person who, in contravention of this subsection, discloses any information obtained by him when employed by, or acting on behalf of, the Board shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(2)Subsection (1) above shall not apply to the disclosure of information—

(a)for the purpose of the proper performance or facilitating the proper performance by the Secretary of State, the Board, any court or tribunal or by any other person or body of duties or functions under this Act;

[F162(aa)for the purpose of any determination or investigation by the Scottish Legal Complaints Commission under the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) (“the 2007 Act”);]

(b)for the purpose of investigating, prosecuting or determining any [F163conduct complaint, remitted by the Scottish Legal Complaints Commission under section 6(a) or 15(5)(a) of the 2007 Act]—

(i)against a solicitor, by the Law Society or the Scottish Solicitors’ Discipline Tribunal;

(ii)against an advocate, by the Faculty of Advocates;

(c)for the purpose of investigating or prosecuting any offence or for the report of any proceedings in relation to such an offence;

[F164(d)for the purposes of any investigation by the Scottish Public Services Ombudsman under the Scottish Public Services Ombudsman Act 2002 (asp 11)];

[F165(e)for the purposes of an inquiry by the Scottish Commission for Human Rights under section 8 of the Scottish Commission for Human Rights Act 2006 (asp 16)][F166;

(f)for the purposes of, or required by virtue of, section 50 of the Freedom of Information (Scotland) Act 2002 (asp 13)];

[F167(g)in pursuance of a requirement made under section 10(1) of the Adult Support and Protection (Scotland) Act 2007 (asp 10).]

(3)For the purposes of this section, information furnished to any person in his capacity as counsel or a solicitor by or on behalf of a person seeking or receiving legal aid or advice and assistance is not information furnished to the Board or to a person acting on its behalf.

Textual Amendments

Modifications etc. (not altering text)

C32S. 34(2): disclosure powers extended (14.12.2001) by 2001 c. 24, ss. 17, 127(2)(a), Sch. 4 Pt. 1 para. 26

35 False information etc.S

(1)If any person seeking or receiving legal aid or advice and assistance—

(a)wilfully fails to comply with any regulations as to the information to be furnished by him; or

(b)for the purpose of obtaining legal aid or advice and assistance knowingly makes any false statement or false representation,

he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale or to imprisonment for a term not exceeding 60 days or to both.

(2)Notwithstanding [F168section 136 of the Criminal Procedure (Scotland) Act 1995], proceedings for an offence under subsection (1) above may be commenced at any time within 2 years from the date of the commission of the offence or within 6 months from the date when evidence sufficient in the opinion of the Lord Advocate to justify proceedings comes to his knowledge, whichever period is the shorter; and for the purposes of this subsection a certificate by the Lord Advocate as to the date on which such evidence came to his knowledge shall be conclusive evidence of that fact.

Textual Amendments

F168Words in s. 35(2) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 63(10)

[F16935A Power of Board to require information.S

(1)The Board may, for the purpose of determining whether—

(a)a solicitor or any employee of him or of his firm may be committing a criminal offence in connection with criminal legal assistance; or

(b)a solicitor may be seeking, in relation to criminal legal assistance, to recover from the Fund money to which he is not entitled, as, for example, by performing unnecessary work; or

(c)a registered firm or solicitor is or may not be complying with the code,

require any solicitor or firm to produce such information and documents relating wholly or partly to the provision of criminal legal assistance as it may specify, at such time and place as it may specify.

(2)If it appears to the Board that there is good reason to do so, it may authorise any of its officers to require any solicitor or firm to produce forthwith any such information or documents as are mentioned in subsection (1) above.

(3)An officer of the Board acting under subsection (2) above shall, if requested to do so, produce evidence of his authorisation by the Board.

(4)The power under this section to require production of information and documents includes power—

(a)to require any person, who is a present or past partner or employee of any such solicitor or firm and who appears to the Board or one of its officers to have any information or documents, to produce them;

(b)if any documents are produced—

(i)to take copies of them or extracts from them; and

(ii)to require the person producing them, or any other person who is a present or past partner or employee of the solicitor or firm in question, to provide an explanation of them;

(c)if any document or information is held other than in legible form, to require the production of a copy of it in legible form; and

(d)if documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(5)Where any person claims a lien over any documents required to be produced under this section the production is without prejudice to the lien.

(6)Any person who is required under this section to produce information or documents shall, notwithstanding any duty of confidentiality, comply with that requirement; and if he fails to comply he shall be guilty of an offence and liable—

(a)on conviction on indictment, to a fine; and

(b)on summary conviction, to a fine not exceeding the statutory maximum.

(7)Where a person is charged with an offence under subsection (6) above in respect of a requirement to produce documents, it shall be a defence for him to prove that they were not in his possession or under his control and that it was not reasonably practicable for him to comply with the requirement.

(8)No information or documents obtained by the Board by virtue of this section or section 35B of this Act shall be used by it or by any of its employees for any purpose other than the purposes mentioned in subsection (1) above.

(9)Section 34 of this Act applies in relation to a contravention of subsection (8) above as it applies in relation to a contravention of subsection (1) of that section.]

Textual Amendments

F169Ss. 35A-35C inserted (1.10.1997) by 1997 c. 48, s.53; S.I. 1997/2323, art. 6, Sch.3

F170Power of entryS

Textual Amendments

F170Ss. 35A-35C inserted (1.10.1997) by 1997 c. 48, s.53; S.I. 1997/2323, art. 6, Sch.3

F17135B Power of Board to enter premises and investigate.S

(1)Where a sheriff is satisfied, by evidence on oath given on behalf of the Board by a person authorised by the Board for that purpose, that there are reasonable grounds for believing that—

(a)a solicitor or any employee of him or his firm may be committing a criminal offence in connection with criminal legal assistance; or

(b)a solicitor may be seeking, in relation to criminal legal assistance, to recover from the Fund money to which he is not entitled, as, for example, by performing unnecessary work; or

(c)a registered firm or solicitor may not be complying with the code; or

(d)there are on any premises documents the production of which has been required under section 35A of this Act and which have not been produced in accordance with that requirement,

he may issue a warrant under this section to a person authorised for that purpose by the Board.

(2)A person holding a warrant under this section may—

(a)search the premises named in the warrant;

(b)take possession of any documents which appear to him to relate, wholly or partly, to any criminal legal assistance provided in or from those premises;

(c)take copies of any such documents;

(d)take any other steps which appear to him to be necessary for preserving those documents or preventing their destruction or interference with them; and

(e)require any person named in the warrant to provide an explanation of the documents or to state where they may be found.

(3)The duty to produce documents and to provide explanations applies notwithstanding any duty of confidentiality, but where any person claims a lien over any documents the production is without prejudice to that lien.

(4)A warrant under this section shall continue in force for the period of one month from the date when it is issued.

(5)The Board may retain any documents which it has obtained under this section for—

(a)a period of not more than 12 months; or

(b)where, within that period, proceedings to which the documents are relevant are commenced by the Board, the Law Society or a prosecutor, until the conclusion of those proceedings.

(6)Any person who intentionally obstructs the execution of a warrant issued under this section or who fails without reasonable excuse to comply with any requirement imposed in accordance with subsection (2)(e) above shall be guilty of an offence, and liable—

(a)on conviction on indictment, to a fine; and

(b)on summary conviction, to a fine not exceeding the statutory maximum.

Textual Amendments

F171Ss. 35A-35C inserted (1.10.1997) by 1997 c. 48, s.53; S.I. 1997/2323, art. 6, Sch.3

F172Suspension of payments to solicitorS

Textual Amendments

F172Ss. 35A-35C inserted (1.10.1997) by 1997 c. 48, s.53; S.I. 1997/2323, art. 6, Sch.3

F17335C Suspension of payments to solicitor.S

(1)Where it appears to the Board that any solicitor has, in connection with the provision of criminal legal assistance, acted in such a way as to justify action being taken against him by the Law Society or the Scottish Solicitors’ Discipline Tribunal it shall refer the matter to either of those bodies so that they can consider whether to take action under section 31(3) of this Act.

(2)Where it appears to the Board that any solicitor may have been guilty of a criminal offence it shall refer the matter to the police or the procurator fiscal, so that they can consider whether any criminal offence may have been committed.

(3)Where the Board refers a matter to any of the bodies mentioned in subsections (1) or (2) above, it may disclose to that body any information or documents which it has obtained from the solicitor concerned under this Act.

(4)Where the Board has referred a matter to any of the bodies mentioned in subsections (1) or (2) above it may—

(a)suspend the solicitor concerned from providing criminal legal assistance; and

(b)withhold payment of any fees due to him in respect of such work,

pending the outcome of the investigation by the body or bodies to which the matter has been referred.

(5)A solicitor who is suspended from providing criminal legal assistance under subsection (4)(a) above shall, in accordance with arrangements approved by the Board, transfer—

(a)any work currently being undertaken by him for any client by way of criminal legal assistance; and

(b)notwithstanding any lien to which he might otherwise be entitled, any documents connected with any such work,

to a solicitor (or, where registration is in force, a registered solicitor).

Textual Amendments

F173Ss. 35A-35C inserted (1.10.1997) by 1997 c. 48, s.53; S.I. 1997/2323, art. 6, Sch.3

Regulations and rules of courtS

36 Regulations.S

(1)The Secretary of State may make such regulations under this section as appear to him necessary or desirable for giving effect to, or for preventing abuses of, this Act; and regulations made under this section may make different provision—

(a)in relation to legal aid and to advice and assistance respectively; and

(b)for different cases or classes of case.

(2)Without prejudice to subsection (1) above or to any other provision of this Act authorising the making of regulations, regulations made under this section may—

(a)make provision as to the exercise by the Board of its functions under this Act;

(b)substitute different amounts for any of the amounts specified in section 8, 10(2), 11(2), 15 and 17(2) of this Act [F174and the power to substitute different amounts for the amount specified in section 10(2) of this Act includes power to substitute different amounts in relation to different cases or classes of case];

(c)make provision as to the proceedings which are or are not to be treated as distinct proceedings for the purposes of legal aid, and as to the matters which are or are not to be treated as distinct matters for the purposes of advice and assistance;

[F175(ca)make provision allowing the Board to determine—

(i)the matters which, subject to subsection (2A), are or are not to be treated as distinct matters for the purposes of advice and assistance;

(ii)on a case by case basis, matters which may be treated as if they were distinct matters for the purposes of advice and assistance;]

(d)make provision as to the manner of making applications for legal aid or advice and assistance under this Act and the time when such applications may be made and disposed of;

(e)make provision as to the information to be furnished by a person seeking or receiving legal aid or advice and assistance;

(f)make provision as to the cases in which a person may be refused legal aid or advice and assistance by reason of his conduct when seeking or receiving legal aid or advice and assistance (whether in the same or in a different matter or proceedings);

(g)make provision in connection with the recovery of sums due to the Fund and making effective the priorities conferred by this Act on the payment of such sums out of awards of expenses or property recovered or preserved for a person receiving legal aid, including—

(i)provision in connection with the enforcement (by whatever means) for the benefit of the Fund of any award of expenses or any agreement as to expenses in favour of a person who has received legal aid; and

(ii)provision making a solicitor’s right to payment out of the Fund dependent, in whole or in part, on his performing any duties imposed on him by regulations made for the purposes of this paragraph;

(h)modify any provision of this Act so far as appears to the Secretary of State necessary to meet any of the special circumstances mentioned in subsection (3) below.

[F176(2A)Regulations made under this section which include provision as mentioned in subsection (2)(ca)(i) must include provision to the effect that—

(a)any determination by the Board as to the matters which are or are not to be so treated as distinct matters may only be made after consultation with the Law Society;

(b)where a matter has been determined by the Board to be so treated as a distinct matter, the Board may not determine that the matter is no longer to be so treated unless the Scottish Ministers consent.]

(3)The special circumstances referred to in subsection (2)(h) above are where a person seeking or receiving legal aid or advice and assistance—

(a)is not resident in Scotland;

(b)is concerned in a representative, fiduciary or official capacity;

[F177(bb)is [F178applying for an order under section 53(1), 57(1), 60(1), 62(1) or 63(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (in relation to himself or any other adult) or is otherwise] concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult under [F179that Act];]

(c)is concerned jointly with or has the same interest as other persons, whether receiving legal aid or advice and assistance or not;

(d)has available to him rights and facilities making it unnecessary for him to take advantage of the provisions of this Act, or has a reasonable expectation of receiving financial or other help from a body of which he is a member;

(e)seeks legal aid or advice and assistance in a matter of special urgency;

(f)begins to receive legal aid or advice and assistance after having consulted a solicitor in the ordinary way with respect to the same proceedings, or ceases to receive legal aid or advice and assistance before the proceedings in question are finally settled;

(g)has, while receiving legal aid or advice and assistance, any change of circumstances such that, had the changed circumstances subsisted at the time the application for legal aid or advice and assistance was made, the original disposal of the application would have been likely to have been affected.

(4)Regulations made under this section may also modify this Act or any instrument having effect under this Act (including so much of any of those provisions as specifies a sum of money) for the purposes of its application—

(a)in cases where such modification appears to the Secretary of State necessary for the purpose of fulfilling any obligation imposed on the United Kingdom or Her Majesty’s government therein by any international agreement; or

(b)in relation to proceedings for securing the recognition or enforcement in Scotland of judgments given outside the United Kingdom for whose recognition or enforcement in the United Kingdom provision is made by any international agreement.

Textual Amendments

F177S. 36(3)(bb) inserted (2.4.2001) by 2000 asp 4, ss. 88(2), Sch. 5 para. 19; S.S.I. 2001/81, art. 2, Sch. 1

F178Words in s. 36(3)(bb) inserted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 77(1), 79(3). {Sch. 1 para. 3(b)(i)}; S.S.I. 2007/334, art. 2(b), Sch. 2

F179Words in s. 36(3)(bb) substituted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 77(1), 79(3). {Sch. 1 para. 3(b)(ii)}; S.S.I. 2007/334, art. 2(b), Sch. 2

37 Parliamentary procedure.S

(1)Regulations under this Act shall be made by the Secretary of State by statutory instrument and, except as provided in subsection (2) below, shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(2)No regulations shall be made under section 7, [F1808A(1),] 9, 11(2), 13(4), 17(2), 21(2), 24(4) or 36(2)(b) of this Act unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

F181(3). . ..

Textual Amendments

F181S. 37(3) repealed (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 86(4)

38 Rules of court.S

(1)The court may by act of adjournal or, as the case may be, by act of sederunt—

(a)regulate the procedure of any court or tribunal in relation to legal aid, and in particular may make provision as to the cases in which and the extent to which a person receiving legal aid may be required to find caution, and the manner in which caution in such cases may be found;

(b)make provision as to the cases in which a person may be treated as having disentitled himself to a continuance of legal aid by his conduct in connection with his receipt of legal aid;

(c)make provision as to the apportionment of sums recovered or recoverable by virtue of any award of expenses made generally with respect to proceedings or matters which are to be treated as distinct by virtue of regulations made under section 36(2)(c) of this Act;

(d)make provision as to the proceedings which are or are not to be treated as having been instituted by the legally assisted person for the purposes of section 19(3)(b) of this Act;

(e)regulate the procedure to be followed in connection with an order under section 19 of this Act, in particular to enable the Board to be heard in connection with such an order.

[F182(1A)In subsection (1)(a) above, the reference to any court or tribunal shall be construed, except in relation to criminal proceedings, in accordance with section 13(6) of this Act.]

(2)The court may by act of adjournal or, as the case may be, by act of sederunt restrict the fees to be paid to auditors of court, messengers-at-arms, sheriff officers and shorthand writers in any case where such fees are payable in the first instance by or on behalf of a person receiving legal aid to such proportion thereof as may be provided for the time being.

(3)Before making rules of court regulating the procedure of any court or tribunal, the court shall, so far as practicable, consult any rules council or similar body by whom or on whose advice rules of procedure for the court or tribunal may, apart from this Act, be made or whose consent or concurrence is required to any such rules so made.

(4)In this section “the court” means in relation to criminal proceedings, the High Court of Justiciary, and in relation to civil proceedings, the Court of Session.

Textual Amendments

F182S. 38(1A) inserted (6.7.2001) by 2001 asp 7, ss. 6(5), 15(3)

Rights of indemnityS

39 Adaptation of rights to indemnity.S

(1)This section shall have effect in relation to any right (however and whenever created or arising) which a person may have to be indemnified against expenses incurred by him in connection with any proceedings.

(2)In determining in respect of any such right the reasonableness of any expenses, the possibility of avoiding them or part of them by taking advantage of the provisions of this Act shall be disregarded.

(3)Where a person, having any such right to be indemnified against expenses, receives legal aid in connection with the proceedings, then the right shall enure also for the benefit of the Fund as if the expenses incurred by the Fund on his behalf in connection with the proceedings had been incurred by him.

(4)Where—

(a)such a right to be indemnified against expenses arises by virtue of an agreement and is subject to any express provision conferring on those liable under the agreement any right with respect to the bringing or conduct of the proceedings; and

(b)those liable have been given a reasonable opportunity of exercising the right so conferred and have not availed themselves of that opportunity,

the right to be indemnified shall be treated, for the purposes of subsection (3) above, as not being subject to that provision.

GeneralS

40 Finance.S

(1)The Secretary of State shall pay to the Board out of moneys provided by Parliament—

(a)such sums as are required (after allowing for payments into the Fund under paragraphs (a) to (c) and (e) of section 4(3) of this Act) to meet payments out of the Fund under this Act; and

(b)such sums as he may, F183. . . determine are required for the other expenditure of the Board.

(2)The Secretary of State may, F183. . .

(a)determine the manner in which and times at which the sums referred to in subsection (1)(a) above shall be paid to the Board; and

(b)impose conditions on the payment of the sums referred to in subsection (1)(b) above.

(3)The Secretary of State shall pay to the Law Society in accordance with paragraph 1(2)(b) of Schedule 4 to this Act out of moneys provided by Parliament the amount required to make up any deficit in the Legal Aid (Scotland) Fund.

(4)Any payments received by the Secretary of State from the Law Society in accordance with paragraph 1(2)(a) of Schedule 4 to this Act shall be paid by him into the Consolidated Fund.

Textual Amendments

F183Words in s. 40(1)(b)(2) repealed (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 86(5)

41 Interpretation.S

In this Act, unless the context otherwise requires—

  • “advice and assistance” has the meaning given to it in section 6(1) of this Act;

  • [F184“adviser” has the meaning given to it in section 6(2) of this Act;

  • “adviser code” means the code of practice in relation to the register of advice organisations for the time being in force under Schedule 1A to this Act;]

  • “assistance by way of representation” has the meaning given to it in section 6(1) of this Act;

  • “the Board” has the meaning given to it in section 1(1) of this Act;

  • “civil legal aid” has the meaning given to it in section 13(2) of this Act;

  • [F185“the code” means the code of practice in relation to criminal legal assistance for the time being in force under section 25B of this Act;]

  • “criminal legal aid” has the meaning given to it in section 21(1) of this Act;

  • [F186“criminal legal assistance” means criminal legal aid and advice and assistance in relation to criminal matters;

  • “document” includes information recorded in any form;

  • “firm” includes an incorporated practice, a sole solicitor and a law centre;]

  • “the Fund” has the meaning given to it in section 4(1) of this Act;

  • “incorporated practice” has the same meaning as in the M5Solicitors’ (Scotland) Act 1980;

  • [F187“law centre” means a body—

    (a)

    established for the purpose of providing legal services to the public generally as well as to individual members of the public; and

    (b)

    which does not distribute any profits made either to its members or otherwise, but reinvests any such profits for the purposes of the law centre;]

  • “the Law Society” means the Law Society of Scotland;

  • “legal aid” means civil legal aid, criminal legal aid, or legal aid given in connection with proceedings for contempt of court or proceedings under [F188Chapter 2 or Chapter 3 of Part II of the Children (Scotland) Act 1995];

  • “person”

    (a)

    F189does not include a body corporate or unincorporate, except where such body is acting in a representative, fiduciary or official capacity, so as to authorise legal aid or adive and assistance to be provided to such a body [F190; and

    (b)

    includes a person under the age of sixteen years.

  • [F191“the Register” means the Register established and maintained under section 25A of this Act;

  • [F192“the register of advice organisations” means the register established and maintained under section 12A of this Act;]

  • “registered firm” means a firm whose name appears on the Register;

  • [F193“registered organisation” means an organisation whose name appears on the register of advice organisations;]

  • “registered solicitor” means a solicitor whose name appears on the Register;

  • “sole solicitor” means a solicitor practising under his own name or as a single solicitor under a firm name; and

  • “solicitor connected with a firm” includes a sole solicitor and a solicitor who is a partner, director or employee of a firm, and cognate expressions shall be construed accordingly.]]

Textual Amendments

F184 S. 41: definitions of “adviser” and “adviser code” inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(8)(a), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F185 Definition in s. 41 inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(10)(a); S.I. 1997/2323, art. 6(2)

F186 Definitions in s. 41 inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(10)(b); S.I. 1997/2323, art. 6(2)

F187 Definition in s. 41 inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(10)(c); S.I. 1997/2323, art. 6(2)

F188 Words in s. 41 substituted (1.4.1997) by 1995 c. 36, s. 105(4), Sch. 4 para. 40(a) (with s. 103(1)); S.I. 1996/3201, art. 3(7)

F189 S. 41: in the definition of "person" the existing words become para. (a) (1.11.1995) by virtue of 1995 c. 36, s. 105(4), Sch. 4 para. 40(b) (with s. 103(1)); S.I. 1995/2787, art. 3, Sch.

F190 S. 41: in the definition of "person", para. (b) and preceding word added (1.11.1995) by 1995 c. 36, s. 105(4), Sch. 4 para. 40(b) (with s. 103(1)); S.I. 1995/2787, art. 3, Sch.

F191 Definitions in s. 41 inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(10)(d); S.I. 1997/2323, art. 6(2)

F192 S. 41: definition of “the register of advice organisations” inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(8)(b), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F193 S. 41: definition of “registered organisation” inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(8)(c), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

Marginal Citations

[F19441A Regulations in relation to criminal legal assistance.S

(1)The Secretary of State may by regulations made under this section provide that any reference in, under or by virtue of this Act to “criminal legal assistance” shall relate, for any of the purposes of this Act, to such class or classes of criminal legal assistance as he thinks appropriate.

(2)Without prejudice to the generality of subsection (1) above, the power conferred by that subsection may be exercised by reference to—

(a)the class or classes of person who are to receive criminal legal assistance;

(b)the class or classes of case in respect of which such assistance is to be given;

(c)the nature of the work;

(d)the place or places where the assistance is to be provided;

(e)the period for which it is to be provided,

or to any combination of the foregoing; and different provision may be made under that subsection for different purposes, or in relation to different areas or different periods.]

Textual Amendments

F194S. 41A inserted (1.10.1997) by 1997 c. 48, s.54; S.I. 1997/2323, art. 6, Sch.3

42 Disposable income and capital.S

(1)In this Act “disposable income” or “disposable capital” in relation to any person means his income or, as the case may be, the amount of his capital, after making such deductions and allowances as regulations made under this section may prescribe—

(a)in respect of maintenance of dependants, interest on loans, income tax, rates, rent and other matters for which that person must or reasonably may provide;

(b)to take account of the nature of his resources,

and does not include the subject matter of the dispute.

(2)Regulations made under this section may make provision as to the determination of a person’s income and the amount of his capital and in particular for determining whether any resources are to be treated as income or capital and for taking into account fluctuations of income, and different provision may be made for legal aid and for advice and assistance.

(3)Except in so far as regulations made under this section otherwise provide, the resources of a person’s spouse shall be treated for the purposes of this section as that person’s own resources, and such regulations may also make provision, in relation to minors and pupils and other special cases, for taking into account the resources of other persons.

Modifications etc. (not altering text)

C34S. 42 extended (7.10.1996) by S.I. 1996/2447, reg. 7(2)

C35S. 42 amended by S.S.I. 2002/494, reg. 11(2) (as substituted (7.4.2003 with effect as mentioned in reg. 2 of the substituting S.S.I.) by The Civil Legal Aid (Scotland) Amendment Regulations 2003 (S.S.I. 2003/49), reg. 4)

43 Act not to affect certain taxations etc.S

Nothing in this Act shall affect the sum recoverable by virtue of—

(a)an award of expenses in favour of a person to whom legal aid has been made available; or

(b)an agreement as to expenses in favour of such a person which provides for taxation,

and for the purpose of any such award or agreement, the solicitor who acted for the person in whose favour it is made shall be treated as having paid any counsel’s fees.

[F19543A Applications of Act to services provided under Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.S

(1)Advice and assistance shall be available, in accordance with the provisions of this Act, in relation to the provision of executry services by executry practitioners F196. . . and conveyancing services by independent [F197conveyancing practitioners], all within the meaning of section 23 (interpretation of sections 16 to 22) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 as they are so available in relation to the provision of the like services by solicitors.

(2)Subject to any act of sederunt or act of adjournal made under subsection (7) of section 26 of that Act (consideration of applications made under 25) advice and assistance, civil legal aid and criminal legal aid shall be available, in accordance with the provisions of this Act, in relation to the provision of services by persons who have acquired rights to conduct litigation or, as the case may be, rights of audience by virtue of that section as they are so available in relation to the provision of the like services by solicitors and, where appropriate, by advocates.

(3)Where advice and assistance, civil legal aid or criminal legal aid has been made available by virtue of this section, the provisions of this Act shall apply in relation to the person providing those services as they apply in relation to a solicitor or advocate providing like services.]

Textual Amendments

44 Crown application.S

This Act shall bind the Crown.

45 Amendments, transitional provisions, savings and repeals.S

(1)The enactments mentioned in Schedule 3 to this Act shall have effect subject to the amendments there specified (being minor amendments and amendments consequential on this Act).

(2)Without prejudice to sections 16 and 17 of the M6Interpretation Act 1978 (effect of repeals) and section 46(3) of this Act, the transitional provisions and savings contained in Schedule 4 to this Act shall have effect.

(3)The enactments set out in columns 1 and 2 of Schedule 5 to this Act are repealed to the extent specified in the third column of that Schedule.

Marginal Citations

46 Short title, commencement and extent.S

(1)This Act may be cited as the Legal Aid (Scotland) Act 1986.

(2)This Act, apart from this section, shall come into force on such day as the Secretary of State may, by order made by statutory instrument, appoint; and different days may be so appointed for different purposes and for different provisions.

(3)An order under subsection (2) above may contain such transitional provisions and savings as appear to the Secretary of State necessary or expedient.

(4)This Act, except section 18(3), extends only to Scotland.

Subordinate Legislation Made

P1 S. 46(2) power partly exercised: different dates appointed for specified provisions by S.Is. 1986/1617, 1987/289, 1992/1226.

S. 46(2) power fully exercised: 2.11.2001 appointed for remaining provisions by S.S.I. 2001/393, art. 2

SCHEDULES

Section 1.

SCHEDULE 1S The Scottish Legal Aid Board

Incorporation and StatusS

1SThe Board shall be a body corporate with a common seal.

2(1)The Board is not an emanation of the Crown and shall not act or be treated as the servant or agent of the Crown.S

(2)Accordingly—

(a)neither the Board, nor any of its members, nor any member of its staff as such is entitled to any status, immunity, privilege or exemption enjoyed by the Crown;

(b)the members of the Board and the members of its staff are not, in such capacity, Crown servants; and

(c)the Board’s property is not the property of or held on behalf of the Crown.

(3)Subject to sub-paragraph (4) below, the Board shall not be exempt from any tax, duty, rate, levy or other charge whatever (whether general or local).

(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F198

Textual Amendments

Tenure of MembersS

3SSubject to paragraphs 4 and 5 below any member of the Board shall hold and vacate office in accordance with the terms of his appointment, but a person shall not be appointed a member of the Board for a period of more than 5 years.

4(1)The chairman or a member may resign office by giving notice in writing to the Secretary of State, and if the chairman ceases to be a member he shall cease to be the chairman.S

(2)A person who ceases to be the chairman or a member shall be eligible for reappointment.

5SThe Secretary of State may terminate the appointment of a member of the Board if satisfied that—

(a)he has had his estate sequestrated, or has been adjudged bankrupt or has granted a trust deed for or entered into an arrangement with his creditors;

(b)he is unable to carry out his duties as a Board member by reason of physical or mental illness;

(c)he has been absent from meetings of the Board for a period longer than six consecutive months without the permission of the Board; or

(d)he is otherwise unable or unfit to discharge the functions of a member of the Board, or is unsuitable to continue as a member.

Remuneration of membersS

6(1)The Board may—S

(a)pay to its members such remuneration; and

(b)make provision for the payment of such pensions, allowances or gratuities to or in respect of its members,

as the Secretary of State may, F199. . . determine.

(2)Where a person ceases to be a member of the Board otherwise than on the expiry of his term of office, and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Secretary of State may, F200. . . direct the Board to make that person a payment of such amount as the Secretary of State may, F200. . . determine.

Textual Amendments

StaffS

7(1)The Board shall, after consultation with, and subject to the approval of, the Secretary of State, appoint on such terms and conditions as it may determine a person to be the principal officer of the Board.S

(2)The principal officer shall be responsible to the Board for the exercise of its functions.

8(1)Subject to paragraph 9 below, the Board may appoint, on such terms and conditions as it may determine, such other employees as it thinks fit.S

(2)A determination as to terms and conditions under paragraph 7(1) or sub-paragraph (1) above shall be subject to the approval of the Secretary of State F201. . ..

(3)The Board shall, in respect of such of its employees as it may determine, with the approval of the Secretary of State F202. . . make such arrangements for providing pensions, allowances or gratuities as it may determine; and such arrangements may include the establishment and administration, by the Board or otherwise, of one or more pension schemes.

(4)The reference in sub-paragraph (3) above to pensions, allowances or gratuities in respect of employees of the Board includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any such employee who suffers loss of office or employment.

(5)If an employee of the Board becomes a member of the Board and was by reference to his employment by the Board a participant in a pension scheme established and administered by it for the benefit of its employees—

(a)the Board may determine that his service as a member shall be treated for the purposes of the scheme as service as an employee of the Board whether or not any benefits are to be payable to or in respect of him by virtue of paragraph 6 above; but

(b)if the Board determines as aforesaid, any discretion as to the benefits payable to or in respect of him which the scheme confers on the Board shall be exercised only with the consent of the Secretary of State F203. . ..

Textual Amendments

F201Words in Sch. 1 para. 8(2) repealed (1.7.1999) by 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 86(6)(c), Pt. IV

9(1)The Board shall, not later than such date as the Secretary of State may determine, make an offer of employment by the Board to each person employed immediately before that date—S

(a)by the Law Society for the purpose of their functions under the M7Legal Aid (Scotland) Act 1967; and

(b)in the civil service of the State wholly or mainly in connection with the assessment of a person’s means under section 4 of that Act.

(2)The terms of the offer shall be such that they are, taken as a whole, not less favourable to the person to whom the offer is made than the terms on which he is employed on the date on which the offer is made.

(3)For the purposes of sub-paragraph (2) above no account shall be taken of the fact that employment with the Board is not employment in the service of the Crown.

(4)An offer made in pursuance of this paragraph shall not be revocable during the period of 3 months commencing with the date on which it is made.

Marginal Citations

10(1)Where a person becomes an employee of the Board on acceptance of an offer made under paragraph 9 above, then, for the purposes of [F204the Employment Rights Act 1996], his period of employment with the Law Society or, as the case may be, in the civil service of the State, shall count as a period of employment by the Board, and the change of employment shall not break the continuity of the period of employment.S

(2)Where an offer is made in pursuance of paragraph 9(1) above to any person employed as is mentioned in that paragraph, none of the agreed redundancy procedures applicable to such a person shall apply to him and—

(a)where a person employed as is mentioned in sub-paragraph (a) of that paragraph ceases to be so employed—

(i)on becoming a member of the staff of the Board in consequence of that paragraph; or

(ii)having unreasonably refused the offer,

F205. . . he shall not be treated for the purposes of any scheme under section 12 of the M8Legal Aid (Scotland) Act 1967 as having been retired on redundancy;

(b)where a person employed as is mentioned in sub-paragraph (b) of that paragraph ceases to be so employed on becoming a member of the staff of the Board in consequence of that paragraph, he shall not be treated for the purposes of any scheme under section 1 of the M9Superannuation Act 1972 as having been retired on redundancy.

(3)Without prejudice to sub-paragraph (2) above, where a person has unreasonably refused an offer made to him in pursuance of paragraph 9 above, the Law Society or, as the case may be, the Secretary of State shall not terminate that person’s employment unless it or, as the case may be, he has first had regard to the feasibility of employing him in a suitable alternative position with the Law Society or, as the case may be, in the civil service of the State.

(4)Where a person continues in employment in the Law Society or, as the case may be, the civil service of the State either—

(a)not having unreasonably refused an offer made to him in pursuance of this paragraph, or

(b)having been placed in a suitable alternative position as mentioned in sub-paragraph (3) above,

he shall be treated for all purposes as if the offer mentioned in paragraph 9(1) above had not been made.

Textual Amendments

F204Words in Sch. 1 para. 10(1) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para.30 (with ss. 191-195, 202)

F205Words in Sch. 1 para. 10(2)(a) repealed (22.8.1996) by 1996 c. 18, ss. 242, 243, Sch. 3 Pt.I (with ss. 191-195, 202)

Marginal Citations

11(1)Any dispute as to whether an offer under sub-paragraph (1) of paragraph 9 above complies with sub-paragraph (2) of that paragraph shall be referred to and be determined by an [F206employment tribunal].S

(2)An [F206employment tribunal] shall not consider a complaint referred to it under sub-paragraph (1) above unless the complaint is presented to the tribunal before the end of the period of 3 months beginning with the date of the offer of employment or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months.

(3)Subject to sub-paragraph (4) below there shall be no appeal from the decision of an [F206employment tribunal] under this paragraph.

(4)An appeal to the Employment Appeal Tribunal may be made only on a question of law arising from the decision of, or in proceedings before, an [F206employment tribunal] under this paragraph.

Textual Amendments

F206Words in Sch. 1 para. 11 substituted (1.8.1998) by 1998 c. 8, s. 1(2) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

ProceedingsS

12(1)Subject to anything in regulations made by the Secretary of State under this Act, the Board may regulate its own proceedings.S

(2)The Board may make such arrangements as it considers appropriate for the discharge of its functions, including the delegation of specified functions.

(3)Committees may be appointed and may be dissolved by the Board, and may include, or consist entirely of, persons who are not members of the Board.

(4)A committee shall act in accordance with such directions as the Board may from time to time give, and the Board may provide for anything done by a committee to have effect as if it had been done by the Board.

(5)The validity of any proceedings of the Board or of any committee appointed by the Board shall not be affected by any vacancy among its members or by any defect in the appointment of any member.

AllowancesS

13SThe Board may pay to each of its members and the members of any committee such reasonable allowances in respect of expenses or loss of remuneration as the Secretary of State may, F207. . ., determine.

Textual Amendments

InstrumentsS

F20814S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Board not dominus litisS

15SNothing done by the Board for the purpose of securing that legal aid or advice and assistance is available to any person in connection with any proceedings shall render it liable to be held to bedominus litis in relation to the proceedings.

(introduced by section 12A(3))

[F209SCHEDULE 1ASFurther provision in relation to the Register of Advice organisations

Textual Amendments

Register of advice organisationsS

1(1)An organisation which satisfies the Board that it complies with the relevant provisions of the adviser code shall be approved by the Board as an organisation that may approve a person to provide advice and assistance on behalf of the organisation; and the Board shall make an appropriate entry on the register of advice organisations.S

(2)An individual may apply for entry on the register of advice organisations as an organisation; and if the Board is satisfied that the individual complies with the relevant provisions of the adviser code in relation to an organisation, the Board shall approve the individual and treat the individual as an organisation for the purposes of this Schedule.

(3)The Board must make the register of advice organisations available for public inspection, without charge, at all reasonable times.

(4)In this Schedule an “organisation” includes—

(a)a firm of solicitors;

(b)an incorporated practice within the meaning of section 34(1A)(c) of the Solicitors (Scotland) Act 1980 (c. 46).

ApplicationsS

2(1)An application for entry on the register of advice organisations shall be made in such form as the Board may determine, and shall be accompanied by such documents as the Board may specify.S

(2)On receipt of an application the Board shall make such enquiries as it thinks appropriate for the purposes of determining whether the applicant complies with the relevant provisions of the adviser code.

(3)The Board may determine an application to be entered on the register of advice organisations by—

(a)granting the application; or

(b)refusing the application.

(4)Where the Board decides to refuse an application it shall as soon as practicable thereafter send the applicant, by recorded delivery, a written note of its reasons.

Further provision on applicationsS

3(1)In determining any application for entry on the register of advice organisations, the Board may limit the grant of the application to any of the particular categories of circumstances as specified by virtue of section 12B(1).S

(2)Where the Board limits the grant of an application as mentioned in sub-paragraph (1), the entry made on the register under paragraph 1(1) must state the categories in relation to which the organisation is registered; and any adviser approved by the organisation may provide advice and assistance under this Act only in relation to those categories.

Adviser codeS

4(1)The Board shall prepare a code of practice (an “adviser code”) in relation to advisers and registered organisations.S

(2)The adviser code prepared under sub-paragraph (1) must include—

(a)the conditions to be complied with in order to qualify for registration;

(b)the types of organisations eligible for registration;

(c)the conditions to be complied with in order for a person to be approved by a registered organisation as an adviser;

(d)the laying down of standards, conduct, practice and training expected in relation to—

(i)the provision of advice and assistance by advisers;

(ii)the supervision of such activity by registered organisations;

(e)arrangements for dealing with complaints about the activities of advisers and registered organisations;

(f)arrangements for monitoring the activities of advisers and registered organisations.

(3)The adviser code prepared under sub-paragraph (1) has effect on such date as the Board may confirm.

(4)But the adviser code may not have effect unless and until it has been—

(a)approved by the Scottish Ministers; and

(b)the Board has laid a copy of the prepared code before the Scottish Parliament.

(5)The Board is to publish the adviser code in such way as, in its opinion, is likely to bring it to the attention of those interested in it.

(6)The Board is to—

(a)keep the adviser code under review; and

(b)revise it where appropriate.

(7)The provisions of this paragraph apply in relation to any revision of the adviser code as they apply in relation to the version originally prepared.

(8)Registered organisations shall comply with the relevant requirements of the adviser code.

MonitoringS

5SThe Board is to monitor—

(a)the provision of advice and assistance and related activities by advisers;

(b)compliance with the adviser code by registered organisations.

Removal of name from the register of advice organisationsS

6(1)Where it appears to the Board (whether or not following a complaint made to it) that a registered organisation may not be, or may not have been, complying with the adviser code, it shall investigate the matter in such manner as it thinks fit.S

(2)Where the Board conducts an investigation under sub-paragraph (1) it must allow the registered organisation concerned the opportunity to make representations.

(3)Following an investigation under sub-paragraph (1), the Board may give the registered organisation concerned an opportunity, within such time as it may specify, to remedy any defect in the compliance with the adviser code.

(4)Where, after carrying out the procedures mentioned in sub-paragraph (1) and, where a time limit has been set under sub-paragraph (3), after the expiry of that time limit, the Board is satisfied that the registered organisation is not complying with the adviser code, it shall remove from the register of advice organisations the name of the organisation.

(5)Where, after carrying out the procedures mentioned in sub-paragraph (1) and, where a time limit has been set under sub-paragraph (3), after the expiry of that time limit, the Board is satisfied that, regardless of whether or not there is current compliance with the code, the registered organisation has not complied with the code in a material regard, it may remove the name of the organisation from the register of advice organisations.

(6)Where the Board decides to remove the name of an organisation from the register of advice organisations in accordance with sub-paragraph (4) it shall as soon as practicable thereafter send the organisation, by recorded delivery, a written note of its reasons.

AppealsS

7(1)A decision by the Board to refuse an application under paragraph 2(3)(b) may be appealed by the applicant to the Court of Session within 21 days of the receipt of the notification of the Board's reasons under paragraph 2(4).S

(2)A decision by the Board under paragraph 6(4) or (5) to remove from the register of advice organisations the name of a registered organisation may be appealed to the Court of Session within 21 days of the receipt of the notification of the Board's reasons under paragraph 6(6); but the making of an appeal shall not have the effect of restoring the name to the register of advice organisations.

(3)An appeal under sub-paragraph (1) or (2) may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit.]

SCHEDULE 2S

Part IS Courts in which Civil Legal Aid is Available

1SCivil legal aid shall be available in relation to civil proceedings in—

  • [F210the [F211Supreme Court], in references, appeals and applications for special leave to appeal under paragraphs 10, 12 [F212, 13(b), 32 and 33] of Schedule 6 to the Scotland Act 1998;]

  • the [F213Supreme Court], in appeals from the Court of Session;

  • the Court of Session;

  • the Lands Valuation Appeal Court;

  • the Scottish Land Court;

  • the sheriff court,

and in relation to proceedings—

  • before any person to whom a case is referred in whole or in part by a court mentioned above;

  • F214. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • in the Lands Tribunal for Scotland;

  • in the Employment Appeal Tribunal[F215;

  • before the Proscribed Organisations Appeal Commission;]

  • [F216comprising an appeal to the Social Security Commissioners;

  • F217. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .];

  • [F218before the Upper Tribunal of the type described in paragraph 3].

Textual Amendments

F211Words in Sch. 2 Pt. 1 para. 1 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 5), ss. 40, 148(1), Sch. 9 {para. 85(4)}; S.I. 2009/1604, art. 2(d)

F212Words in Sch. 2 Pt. 1 para. 1 substituted (8.2.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 73(2), 82(2) (with s. 77); S.S.I. 2007/57, art. 2(c)

F213Words in Sch. 2 Pt. 1 para. 1 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 45; S.I. 2009/1604, art. 2(d)

F214Sch. 2 Pt. I para. 1: entry omitted (19.2.2001) by virtue of S.S.I. 2001/42, regs. 2, 3(a)

F215Sch. 2 Pt. I para. 1: entry added (19.2.2001) by S.S.I. 2001/42, regs. 2, 3(b)

F218Sch. 2 Pt. 1 para. 1: entry inserted (9.6.2010) by The Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 2) (Scotland) Regulations 2010 (S.S.I 2010/239), {reg. 3(3)}

2SFor the purposes of section 13 of this Act, proceedings in the European Court of Justice on a reference, under Article [F219234] of the EEC Treaty, made by a court mentioned in paragraph 1 above are part of the proceedings in the court making the reference.

Textual Amendments

F219Words in Sch. 2 Pt. I para. 2 substituted (19.2.2001) by S.S.I. 2001/42, regs. 2, 4

Proceedings for judicial review before the Upper TribunalS

[F2203The proceedings before the Upper Tribunal mentioned in paragraph 1 are those arising from an application to the supervisory jurisdiction of the Court of Session that has been transferred under section 20 of the Tribunals, Courts and Enforcement Act 2007.]

Textual Amendments

Part IIS Excepted Proceedings

1SSubject to [F221section 14(1C) and] paragraph 2 below, civil legal aid shall not be available in proceedings which are wholly or partly concerned with defamation or verbal injury.

Textual Amendments

F221Words in Sch. 2 Pt. II para. 1 inserted (8.2.2007) by Legal Profession and Legal Aid (Scotland) Act 2007, {arts. 71(3)(a)}, 82(2) (with s. 77); S.S.I. 2007/57, art. 2(b)

2SThe making of a counterclaim for defamation or verbal injury in any proceedings shall not of itself affect the availability of legal aid to the other party F222. . . .

Textual Amendments

F222Words in Sch. 2 Pt. II para. 2 repealed (8.2.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 71(3)(b), 82(2) (with s. 77); S.I. 2007/57, art. 2(b)

[F2233SCivil legal aid shall not be available in relation to —

(a)election petitions under the Representation of the People Act 1983 M10;

(b)simplified divorce applications under the Rules of Procedure of the Court of Session or the sheriff court;

(c)small claims processes at first instance under section 35(2) of the Sheriff Courts (Scotland) Act 1971 M11 summary causes); and

(d)petitions by a debtor for the sequestration of his estate under section 5(2)(a) of the Bankruptcy (Scotland) Act 1985 M12.]

Textual Amendments

F223Sch. 2 Pt. II para. 3 substituted (1.4.1993) by S.I. 1993/969, reg. 2

Marginal Citations

M12Section 5(2)(a) amended by section 3(2) of the Bankruptcy (Scotland) Act 1993 (c. 6).

[F2244SSubject to paragraph 5 below, civil legal aid shall not be available in relation to proceedings at first instance under the Debtors (Scotland) Act M131987, [F225or Part 2 or 3 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)][F226or Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3)] other than proceedings in connection with an application under section 1(1) or 3(1) of that Act [F227of 1987] to a Lord Ordinary or to the sheriff in an ordinary cause.]

Textual Amendments

Marginal Citations

M131987 c.18 (45:2).

[F2285SNothing in paragraph 4 above shall preclude any third party to proceedings under the Debtors (Scotland) Act M141987 [F229or Part 2 or 3 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)][F230or Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3)] from obtaining legal aid in connection with those proceedings.]

Textual Amendments

Marginal Citations

M141987 c.18 (45:2).

Section 45.

SCHEDULE 3S Minor and Consequential Amendments

The Maintenance Orders (Reciprocal Enforcement) Act 1972 (c.18)S

1(1)In section 31(1) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 for the words from “secretary” where it first occurs to “taking” there shall be substituted the words:—S

“Secretary of the Law Society of Scotland who shall send the application and any accompanying documents to a solicitor practising in the sheriff court within the jurisdiction of which that other person resides or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate, for the purposes of enabling the solicitor to take”.

(2)In section 32 of that Act—

(a)after subsection (7) there shall be inserted the following subsections—

“(7A)The Secretary of State on receiving notice under subsection (6) above shall send a copy of the registered order and of the related documents to the Secretary of the Law Society of Scotland who shall send the copy of the order and of the related documents to a solicitor practising in the registering court or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate for the purpose of enabling the solicitor to take, on behalf of the person entitled to the payments for which the order provides, such steps as appear to the solicitor appropriate to enforce the order.

(7B)Where an order is registered in the sheriff court by virtue of subsection (3) above, any provision of the order by virtue of which the payments for which the order provides are required to be made through or to any officer or person on behalf of the person entitled thereto shall be of no effect so long as the order is so registered.”;

(b)subsection (9)(e) of that section shall be omitted.

(3)In section 34(5) of that Act, for paragraph (b) there shall be substituted the following paragraph—

“(b)for subsection (3) there shall be substituted the following subsection—

(3)Where the Secretary of State receives from the appropriate authority in a convention country an application by a person in that country for the variation of a registered order, he shall, if the registering court is a sheriff court, send the application, together with any documents accompanying it, to the Secretary of the Law Society of Scotland who shall send the application and any accompanying documents to a solicitor practising in the registering court or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate, for the purpose of enabling the solicitor to take on behalf of the applicant such steps as appear to the solicitor appropriate in respect of the application.’.”.

2(1)Section 43A of that Act shall be amended as follows.S

(2)In subsection (1) for the words “section 2(1) and (6)(c), 3 and 4 of the Legal Aid (Scotland) Act 1967” there shall be substituted the words “sections 15 and 17 of the Legal Aid (Scotland) Act 1986”.

(3)In subsection (2) for the words “sections 2(1) and (6)(c), 3 and 4 of the said Act of 1967”, there shall be substituted the words “sections 15 and 17 of the said Act of 1986”.

(4)In subsection (3) for the words from “legal advice” to “said Act of 1972)”, where they second occur, there shall be substituted the words “advice and assistance under the said Act of 1986, shall, notwithstanding any financial conditions or requirements to make contributions imposed by sections 8 and 11 of that Act,”.

The House of Commons Disqualification Act 1975 (c.24)S

3SIn Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (other disqualifying offices) there shall be inserted (at the appropriate place in alphabetical order) the following entry—

“Chairman of the Scottish Legal Aid Board”.

The Northern Ireland Assembly Disqualification Act 1975 (c.25)S

4SIn Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (other disqualifying offices) there shall be inserted (at the appropriate place in alphabetical order) the following entry—

“Chairman of the Scottish Legal Aid Board”.

The Sex Discrimination Act 1975 (c.65)S

5SF231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

The Race Relations Act 1976 (c.74)S

6SF232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

The Solicitors (Scotland) Act 1980 (c.46)S

7SIn section 35(4) of the Solicitors (Scotland) Act 1980 for paragraph (b) there shall be substituted—

“(b)who is in employment to which Part V of the Legal Aid (Scotland) Act 1986 applies;”.

8(1)Section 51 of that Act shall be amended as follows.S

(2)In subsection (2) after the word “client” there shall be inserted the words “or against the Scottish Legal Aid Fund”.

(3)In subsection (3) after paragraph (d) there shall be inserted the following paragraph—

“(e)the Scottish Legal Aid Board.”.

The Tenants’ Rights, Etc. (Scotland) Act 1980 (c.52)S

9SIn section 9B(4) of the Tenants’ Rights, Etc. (Scotland) Act 1980 for the words “Legal Aid and Advice (Scotland) Acts 1967 and 1972 and to any provision of those Acts for payment of any sum into the legal aid fund” there shall be substituted the words “Legal Aid (Scotland) Act 1986 and to any provision of that Act for payment of any sum into the Scottish Legal Aid Fund”.

Section 45.

SCHEDULE 4S Transitional Provisions and Savings

The Legal Aid (Scotland) fundS

1(1)On the appointed day the Legal Aid (Scotland) Fund (“the Old Fund”) established under section 9 of the Legal Aid (Scotland) Act 1967 (“the 1967 Act”) shall be wound up.S

(2)If, as at the appointed day, after taking account of all receipts and expenses of the Law Society attributable to the 1967 Act or to their functions under the Legal Advice and Assistance Act 1972 (“the 1972 Act”), there is in relation to the Old Fund any surplus or deficit—

(a)such surplus shall be paid by the Law Society to the Secretary of State; and

(b)such deficit shall be made up by payment to the Law Society by the Secretary of State of the amount of the deficit.

(3)Notwithstanding their repeal by this Act—

(a)sections 8(10) and (11) and 11 of the 1967 Act shall continue to have effect for the purposes of requiring the Law Society to account for the Old Fund and to report on its discharge of its functions under that Act up to the appointed day; and

(b)section 9(5) of that Act shall continue to have effect for the purposes of any determination as to the expenses or receipts of the Law Society,

and, if the appointed day falls on a day which is not the last day of the financial year (for the purposes of the said section 11), references in those sections to the financial year shall be construed as references to the period commencing on the day immediately following the end of the last complete financial year and ending with the appointed day.

Rights, obligations and propertyS

2SSubject to paragraph 1 above, on the appointed day all rights, obligations and property of the Law Society which are referable to its functions under the 1967 Act or under the 1972 Act shall become rights, obligations and property of the Board.

Legal aid and advice and assistanceS

3(1)Nothing in this Act shall affect any legal aid under the 1967 Act or advice and assistance under the 1972 Act in respect of which an application has been determined before the appointed day; and, notwithstanding the repeal by this Act of these Acts, they and any schemes, regulations, orders or rules of court made under them shall continue to have effect for the purposes of such legal aid or advice and assistance.S

(2)For the purposes of sub-paragraph (1) above, where the 1967 Act or the 1972 Act or any such scheme, regulation, order or rule of court—

(a)requires or enables anything to be done by the Law Society or any of its committees or by any person on its behalf; or

(b)requires or enables the person in receipt of such legal aid or advice and assistance to do anything in relation to the Law Society,

that thing shall, on and after the appointed day, be required or, as the case may be, enabled to be done by or in relation to the Board.

(3)Any payments which are required to be made into or out of the Old Fund in connection with such legal aid or advice and assistance shall, on and after the appointed day, be made into or out of the Fund; and for the purposes of this sub-paragraph, any reference in the 1967 Act or the 1972 Act to the Old Fund shall be construed as a reference to the Fund.

4(1)Any application for legal aid duly made under the 1967 Act or for advice and assistance duly made under the 1972 Act which has been made, but not determined, before the appointed day shall be treated as an application duly made under this Act.S

(2)For the purposes of this paragraph and paragraph 3 above an application for legal aid is determined—

(a)in the case of legal aid in connection with—

(i)civil proceedings (including an appeal in such proceedings);

(ii)an appeal in criminal proceedings; or

(iii)an appeal against the decision of the sheriff under Part III of the M15Social Work (Scotland) Act 1968,

when a legal aid certificate is issued or refused;

(b)in the case of legal aid in connection with—

(i)criminal proceedings; or

(ii)proceedings before the sheriff under Part III of the Social Work (Scotland) Act 1968,

when the court grants or refuses legal aid.

(3)For the purposes of this paragraph and paragraph 3 above an application for advice and assistance is determined when the solicitor to whom the application is made agrees or, as the case may be, refuses to accept the application and to provide advice and assistance.

Marginal Citations

PensionsS

5SAny arrangements made by the Law Society under section 12 of the 1967 Act in respect of any person shall be treated on and after the appointed day (so far as may be necessary to preserve their effect) as having been made under paragraph 8(3) of Schedule 1 to this Act, and any pension scheme administered by the Law Society immediately before the appointed day shall be deemed to be a pension scheme established and administered by the Board under that paragraph and shall continue to be administered accordingly.

GeneralS

6(1)In this Schedule “the appointed day” means the day appointed by the Secretary of State under section 46(2) of this Act for the coming into force of section 4 thereof.S

(2)Subject to sub-paragraph (1) above, expressions used in this Schedule and in the 1967 Act or, as the case may be, in the 1972 Act shall have the same meaning in this Schedule as they do in that Act.

Schedule 5S Repeals

ChapterShort titleExtent of repeal
1967 c. 43.The Legal Aid (Scotland) Act 1967.The whole Act.
1968 c. 49.The Social Work (Scotland) Act 1968.Section 53.
Schedule 4.
1972 c. 11.The Superannuation Act 1972.Section 18(2).
1972 c. 18.The Maintenance Orders (Reciprocal Enforcement) Act 1972.Section 32(9)(e).
1972 c. 50.The Legal Advice and Assistance Act 1972.The whole Act.
1973 c. 41.The Fair Trading Act 1973.In section 43(1), paragraph (b).
Section 43(2).
1975 c. 20.The District Courts (Scotland) Act 1975.Section 21.
1977 c. 38.The Administration of Justice Act 1977.Section 1(2).
In Schedule 1, Part II.
1979 c. 26.The Legal Aid Act 1979.Part II.
Section 12(2).
In section 14(2), the words “and may be cited together with the Act of 1967 and the Act of 1972 as the Legal Aid and Advice (Scotland) Acts 1967 to 1979.”.
Section 14(3)(b).
In section 14(4), the words “, or as the case may be the Secretary of State”.
Section 14(5)(b).
In Schedule 1, paragraphs 1 to 8.
1980 c. 30.The Social Security Act 1980.In Schedule 4, paragraph 4.
1980 c. 55.The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980.Section 26.
1980 c. 62.The Criminal Justice (Scotland) Act 1980.Section 10(4).
1981 c. 49.The Contempt of Court Act 1981.Section 13(4).
In Schedule 2, Part II.
1982 c. 27.The Civil Jurisdiction and Judgments Act 1982.Section 40(2).
1983 c. 12.The Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983.Section 3.
In the Schedule, paragraph 11 and paragraphs 14 to 17.