Legal Aid (Scotland) Act 1986

31 Solicitors and counsel. S

(1) [F1 Subject 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, [F2 or 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.

[F3 (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; F4 . . .

(e) regulations made under subsection (9) below[F5 ; and]

[F6 (f) [F7 sections 92(2), (2B)(b), (2D) and (2E) and] 288D of the Criminal Procedure (Scotland) Act 1995 (c.46)]

[F8 and 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.]]

(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) [F9 Subject 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 M1 Solicitors (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.

[F10 (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

F1 Words 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)

F2 Words 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.

F3 S. 31(1A) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(8)(b); S.I. 1997/2323, art. 6(2)

F4 Word preceding s.31(1A)(e) repealed (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 2(3)(a); S.S.I. 2002/443, art. 3

F5 S.31(1A)(f) and preceding word inserted (1.11.02) 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))

F6 S. 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))

F7 Words in s. 31(1A)(f) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(8), 27(1); S.S.I. 2004/405, art. 2(1), Sch. 1 (with arts. 3-5)

F8 Words in s. 31(1A) added (6.7.2001) by 2001 asp 7, ss. 9(8), 15(3)

F9 Words 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.

F10 S. 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)

C1 S. 31(1) excluded (6.2.2002) by S.S.I. 2001/464, reg. 2(a)

Marginal Citations

M1 1980 c. 46.