Legalize / United Kingdom / Public General Act

Legal Aid (Scotland) Act 1986

Type Public General Act

Publication 1986-07-25

Last updated 2024-04-30

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part I — Scottish Legal Aid Board

The Board

Financial limit.

1

(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

(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

2

(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;

(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

3

(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

4

(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

(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

5

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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

6

(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

7

(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

8

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

9

(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;

(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

Financial limit

10

(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;

(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

(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.

(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.

Clients' contributions.

11

(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) or , (2A) ... below or, where applicable, section 11A.

(2) Where—

(a) a client’s disposable income exceeds £105 a week; and

(b) he is not (directly or indirectly) in receipt of universal credit under Part 1 of the Welfare Reform Act 2012, income support or , 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.

(2A) A client to whom paragraphs (a) and (b) of subsection (2) above apply and to whom advice and assistance (other than assistance by way of representation to which section 9A applies) has been provided by a solicitor employed by the Board under sections 26 and 27 or section 28A of this Act shall pay to the Board such contribution in that respect as the Board may, subject to subsection (3A) below, determine.

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

(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 or section 28A of this Act.

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

Payment of fees or outlays otherwise than through clients' contributions.

12

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

(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 ; but does not apply to the salary payable to a solicitor employed by the Board under 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 or, as the case may be, the registered organisation, as follows—

(a) first, out of any amount payable by the client in accordance with section 11(2) or, as the case may be, section 11A(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 or the registered organisation.

(4) In subsection (3), the reference to an amount payable by the client does not include an amount which it is for the Board to collect (whether under section 11A(3) or any regulations made under section 33ZA(1)).

Part III — Civil Legal Aid

Meaning of " civil legal aid ".

13

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

(2) In this Act, “civil legal aid” means representation by a solicitor and ,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.

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

(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.

Availability of civil legal aid

14

(1) Subject to section 15 of this Act and to subsections (1F) and (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.

(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.

(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;

(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.

(1F) 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.

(1G) The Board shall establish a procedure under which any person receiving civil legal aid under this section which is subject to conditions by virtue of subsection (1F) may apply to the Board for a review of any such condition.

(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) Subject 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.

(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.

Financial conditions

15

(1) A person shall be eligible for civil legal aid if his disposable income does not exceed £26,239 a year.

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

(a) his disposable capital exceeds £13,017; 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.

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

Expenses

Expenses in favour of certain assisted persons

16

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

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

“court” includes tribunal and 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.

Contributions, and payments out of property recovered

17

(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 £3,521 a year, a contribution in respect of income which shall not be more than 67.1% 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 £7,853, 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).

(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.

(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.

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

Expenses of unassisted party

18

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

(2) The liability of a legally assisted person under an award of expenses in 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.

Expenses out of the Fund

19

(1) In any proceedings to 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 . . . 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.

Provisions supplementary to sections 18 and 19

20

(1) For the purposes of section19 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

(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.

Part IV — Criminal Legal Aid

Scope and nature of criminal legal aid

21

(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;

(ia) the Sheriff Appeal Court;

(ii) the sheriff;

(iii) the district court;

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

(b) any reference in connection with such proceedings under Article 267 of the Treaty on the Functioning of the European Union,

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

(d) any reference, appeal or application for permission to appeal to the Supreme Court under section 288ZB or 288AA of the Criminal Procedure (Scotland) Act 1995

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 , where appropriate, by counsel;

(b) by a solicitor at any identification parade held, by or on behalf of the prosecutor (within the meaning of section 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.

Automatic availability of criminal legal aid

22

(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 23A(1) 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

(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 the accused is unfit for trial under section 53F of the Criminal Procedure (Scotland) Act 1995;

(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 where accused found not criminally responsible or unfit for trial) of that Act of 1995;

(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 certain offences and thereby prohibited from conducting defence in person) or 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;

(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,

and, 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.

Power of the court to grant legal aid

23

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

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 Criminal 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 section 204(4)(b) of the Criminal Procedure (Scotland) Act 1995.

Legal aid in summary proceedings

24

(1) Subject to regulations made under section 21(2) of this Act, to section 21(3) of this Act and to subsections (1A), (2) and (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.

(1A) 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.

(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

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

(b) 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.

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

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

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

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

(c) is no longer receiving criminal legal aid in connection with proceedings because the Board is no longer satisfied as to the matters mentioned in paragraphs (a) and (b) of subsection (1),

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.

Legal aid in appeals

25

(1) This section shall apply to criminal legal aid in connection with an appeal against conviction, sentence , other disposal or acquittal in criminal proceedings other 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, the 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;

(b) in the case of an appeal under section 106(1) , 175(2) or 194ZB(1) of the Criminal Procedure (Scotland) Act 1995, leave or permission 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.

(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 or, in the case of an appeal to the Sheriff Appeal Court, that 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.

(2B) Where a person is no longer receiving criminal legal aid because the Board is no longer satisfied as mentioned in subsection (2)(c) above the High Court or, in the case of an appeal to the Sheriff Appeal Court, that Court may, at any time prior to the disposal of the appeal, whether or not on application made to it, notwithstanding the Board no longer being so satisfied, determine that it is in the interests of justice that the person should receive criminal legal aid in connection with the appeal, and the Board shall forthwith make such legal aid available to him.

(2C) Legal aid made available to a person under subsection (2) 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 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.

(3A) The Board shall establish a procedure under which any person whose application for criminal legal aid under subsection (2) has been refused may apply to the Board for a review of his application.

(3B) The Board shall establish a procedure under which any person receiving criminal legal aid under subsection (2) which is subject to conditions by virtue of subsection (2C) may apply to the Board for a review of any such condition.

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

(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 , 187, 194ZD or 194ZE of the Criminal Procedure (Scotland) Act 1995 whether to grant leave or permission 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 or permission to appeal”; and

(b) in subsection (4), after the word “is” there were inserted the words “subject to leave or permission 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 the nobile 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 Scottish Criminal Cases Review Commission under section 194B of the Criminal Procedure (Scotland) Act 1995 as they apply for the purposes of subsection (1) above.

Part V — Employment of Solicitors by the Board

Employment to which Part V applies

26

(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 either 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;

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

(a) assisting the organisation in any 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) “. . . organisation” means an organisation concerned (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.

Arrangements for employment to which Part V applies

27

(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.

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

General provisions relating to employment to which Part V applies

28

(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.

Part VI — Miscellaneous

Proceedings in relation to children

Legal aid in certain proceedings relating to children

29

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contempt of court

Legal aid in contempt proceedings

30

(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) Subsections (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 they apply in relation to legal aid in connection with an appeal against conviction, sentence , other disposal or acquittal in criminal proceedings, and in such application—

(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 , 23A 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 (6) of that section the reference to the nobile officium of the High Court of Justiciary shall include a reference to the nobile 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 , 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.

Solicitors and counsel

31

(1) 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, 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.

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

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

(aa) section 28M(3),

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

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

(da) regulations made under section 33B(4),

(e) regulations made under subsection (9) below ; and

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

and does not apply where the person is being provided with criminal legal assistance or children's 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 Board 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.

(d) in the case of a solicitor investor in a licensed legal services provider, such conduct on the part of any person who is for the time being a solicitor investor in it.

(4) The Board 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 Board 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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) 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

Restriction on payment and employment of solicitor or counsel

32

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 . . . ; 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.

Fees and outlays of solicitors and counsel

33

(1) Subject 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.

(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 and, 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.

(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.

(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.

(3BA) But subsection (3B) does not preclude a solicitor from being paid out of the Fund under section 4(2)(ad) following a claim for interim payment made under section 33ZB in respect of the professional services and outlays mentioned in subsection (3A).

(3C) The Scottish Ministers may, ... 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.

(6) Where a sum is paid out of the Fund under section 4(2)(ad) in connection with the provision of legal aid or advice and assistance, that sum must be deducted from the sum payable to the solicitor or counsel under section 4(2)(a) in connection with the provision of the legal aid or advice and assistance.

Information

Confidentiality of information

34

(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;

(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 conduct complaint, remitted by the Scottish Legal Complaints Commission under section 6(2)(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;

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

(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);

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

(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.

False information, etc.

35

(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 section 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.

Regulations and rules of court

Regulations

36

(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), 11A(1), 15 , 17(2) and 25AC(2) of this Act and the power to substitute different amounts for the amounts specified in sections 10(2), 11A(1) and 25AC(2) and, in so far as relating to criminal matters, sections 8 and 11(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;

(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.

(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;

(bb) is applying 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 that 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.

Parliamentary procedure

37

(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, 8A(1), 9, 11(2), 13(4), 17(2), 21(2), 24(4), 28C(3), 28K(2), 28L(1) or (8), 28LA(1), 28LB(1), , 33ZA(1) 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.

(3) . . ..

Rules of court

38

(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.

(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 the Scottish Civil Justice Council, 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.

Rights of indemnity

Adaptation of rights to indemnity

39

(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.

General

Finance

40

(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, . . . determine are required for the other expenditure of the Board.

(2) The Secretary of State may, . . .

(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.

Interpretation

41

In this Act, unless the context otherwise requires—

“the 2011 Act” means the Children's Hearings (Scotland) Act 2011 (asp 1);

“the 2019 Act” means the Age of Criminal Responsibility (Scotland) Act 2019(asp7),

“advice and assistance” has the meaning given to it in section 6(1) of this Act;

“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;

“children's legal aid” has the meaning given to it in section 28B(2) of this Act;

“children's legal assistance” means— children's legal aid, andadvice and assistance in relation to children's hearings, pre-hearing panels (as defined in section 79(2)(a) of the 2011 Act) or proceedings under Part 10 or 15 of the 2011 Act or in relation to proceedings under Part 4 of the 2019 Act;

“civil legal aid” has the meaning given to it in section 13(2) of this Act;

“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;

“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 licensed legal services provider, 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 Solicitors’ (Scotland) Act 1980;

“law centre” means a body— established for the purpose of providing legal services to the public generally as well as to individual members of the public; andwhich 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;

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