Legal Aid (Scotland) Act 1986

Part I — Scottish Legal Aid Board

The Board

Financial limit.

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• (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.

• (2A) The Board also has the general function of monitoring the availability and accessibility of legal services in Scotland (including by reference to any relevant factor relating particularly to rural or urban areas).

• (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.

Powers of the Board

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• (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

• (da) to give the Scottish Ministers such advice as it may consider appropriate in relation to the availability and accessibility of legal services in Scotland;

• (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.

Duties of the Board

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• (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.

• (2A) The Board is, from time to time, to give the Scottish Ministers such information as they may require relating to the availability and accessibility of legal services in Scotland.

• (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 Fund

Scottish Legal Aid Fund

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• (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) subject to sections 4A(13) and 33(6), such sums as are, by virtue of this Act or any regulations made thereunder, due out of the Fund to any solicitor or counsel or registered organisation in respect of fees and outlays properly incurred or 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;

• (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;

• (iia) children's legal assistance;

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

• (azb) any sums payable by the Board under contracts made by virtue of section 33B;

• (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;

• (abc) any sums payable by the Board under section 17(2D) of this Act;

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

• (ad) such sums as are, by virtue of section 33ZB of this Act, due out of the Fund to a solicitor or counsel in connection with the provision of legal aid or advice and assistance;

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

• (c) such other payments . . . as the Secretary of State may . . . 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;

• (aa) any contribution payable to the Board by any person in pursuance of section 11 , 11A, 25AA or 25AC of this Act;

• (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;

• (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.

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

• (ae) any sums payable to the Board by a solicitor or counsel by virtue of section 33ZC of this Act;

• (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;

• (cc) any contribution payable to the Board by any person in pursuance of section 28K of this Act;

• (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, . . . determine.

Accounts and audit

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• (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, . . . direct.

• (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.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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.

Part II — Advice and Assistance

Definitions

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• (1) In this Act—

• “advice and assistance” means any of the following—oral or written advice provided to a person by a solicitor (or, where appropriate, by counsel)—on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice;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;oral or written advice provided by an adviser—on the application of Scots law to any specified categories of circumstances which have arisen in relation to the person seeking advice;as to any steps which that person might appropriately take having regard to the application of Scots law to those circumstances;assistance provided to a person by a solicitor (or, where 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; andassistance 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 , 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—before a court or tribunal; orin 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—

• “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 section 16(1) of the 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,

and 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.

Application of Part II

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• (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.

Availability of advice & assistance

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Subject to any provision made in regulations under section 8A(1) or 9(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 £245 a week; or

• (b) he is (directly or indirectly) in receipt of universal credit under Part 1 of the Welfare Reform Act 2012, income support , 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 £1,716.

Regulations may apply Part II to representation

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• (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

• (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;

• (dda) provide that, in relation to assistance by way of representation which relates to such criminal proceedings as may be prescribed, sections 9A and 11A are to apply instead of sections 8 and 11;

• (de) provide that section 11(2) or 11A 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.

Financial limit

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• (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 or, 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 or 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 , subject to subsection (4), with the approval of the Board.

• (2) The limit applicable under this section is £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;