Legal Aid (Scotland) Act 1986

• (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;

• “legal aid” means civil legal aid, criminal legal aid, children's legal aid or legal aid given in connection with proceedings for contempt of court ...;

• “licensed legal services provider” and “solicitor investor” are to be construed in accordance with Part 2 of the Legal Services (Scotland) Act 2010;

• “person” does not include a body corporate or unincorporate, except where such body is acting in a representative, fiduciary or official capacity, so as to authorise legal aid or adive and assistance to be provided to such a body ; and includes a person under the age of sixteen years.

• “the Register” means the Register established and maintained under section 25A of this Act;

• “the register of advice organisations” means the register established and maintained under section 12A of this Act;

• “ registered firm ” means a firm whose name appears on the Register;

• “registered organisation” means an organisation whose name appears on the register of advice organisations;

• “ registered solicitor ” means a solicitor whose name appears on the Register;

• “ sole solicitor ” means a solicitor practising under his own name or as a single solicitor under a firm name; and

• “solicitor connected with a firm” includes a sole solicitor , a solicitor investor in a firm and a solicitor who is a partner, director or employee of a firm, and cognate expressions shall be construed accordingly.

Disposable income and capital

42

• (1) In this Act “disposable income” or “disposable capital” in relation to any person means his income or, as the case may be, the amount of his capital, after making such deductions and allowances as regulations made under this section may prescribe—

• (a) in respect of maintenance of dependants, interest on loans, income tax, rates, rent and other matters for which that person must or reasonably may provide;

• (b) to take account of the nature of his resources,

and does not include the subject matter of the dispute.

• (2) Regulations made under this section may make provision as to the determination of a person’s income and the amount of his capital and in particular for determining whether any resources are to be treated as income or capital and for taking into account fluctuations of income, and different provision may be made for legal aid and for advice and assistance.

• (3) Except in so far as regulations made under this section otherwise provide, the resources of a person’s spouse shall be treated for the purposes of this section as that person’s own resources, and such regulations may also make provision, in relation to minors and pupils and other special cases, for taking into account the resources of other persons.

• (4) Regulations under this section may make different provision for—

• (a) children's legal aid and legal aid other than children's legal aid,

• (b) advice and assistance in relation to children's matters and advice and assistance other than advice and assistance in relation to children's matters.

• (5) In subsection (4)(b), “ children's matters ” has the meaning given by section 4A(14).

Act not to affect certain taxations etc.

43

Nothing in this Act shall affect the sum recoverable by virtue of—

• (a) an award of expenses in favour of a person to whom legal aid has been made available; or

• (b) an agreement as to expenses in favour of such a person which provides for taxation,

and for the purpose of any such award or agreement, the solicitor who acted for the person in whose favour it is made shall be treated as having paid any counsel’s fees.

Crown application

44

This Act shall bind the Crown.

Amendments, transitional provisions, savings and repeals

45

• (1) The enactments mentioned in Schedule 3 to this Act shall have effect subject to the amendments there specified (being minor amendments and amendments consequential on this Act).

• (2) Without prejudice to sections 16 and 17 of the Interpretation Act 1978 (effect of repeals) and section 46(3) of this Act, the transitional provisions and savings contained in Schedule 4 to this Act shall have effect.

• (3) The enactments set out in columns 1 and 2 of Schedule 5 to this Act are repealed to the extent specified in the third column of that Schedule.

Short title, commencement and extent

46

• (1) This Act may be cited as the Legal Aid (Scotland) Act 1986.

• (2) This Act, apart from this section, shall come into force on such day as the Secretary of State may, by order made by statutory instrument, appoint; and different days may be so appointed for different purposes and for different provisions.

• (3) An order under subsection (2) above may contain such transitional provisions and savings as appear to the Secretary of State necessary or expedient.

• (4) This Act, except section 18(3), extends only to Scotland.

SCHEDULE 1

Incorporation and Status

1

The Board shall be a body corporate with a common seal.

2

• (1) The Board is not an emanation of the Crown and shall not act or be treated as the servant or agent of the Crown.

• (2) Accordingly—

• (a) neither the Board, nor any of its members, nor any member of its staff as such is entitled to any status, immunity, privilege or exemption enjoyed by the Crown;

• (b) the members of the Board and the members of its staff are not, in such capacity, Crown servants; and

• (c) the Board’s property is not the property of or held on behalf of the Crown.

• (3) Subject to sub-paragraph (4) below, the Board shall not be exempt from any tax, duty, rate, levy or other charge whatever (whether general or local).

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

Tenure of Members

3

Subject to paragraphs 4 and 5 below any member of the Board shall hold and vacate office in accordance with the terms of his appointment, but a person shall not be appointed a member of the Board for a period of more than 5 years.

4

• (1) The chairman or a member may resign office by giving notice in writing to the Secretary of State, and if the chairman ceases to be a member he shall cease to be the chairman.

• (2) A person who ceases to be the chairman or a member shall be eligible for reappointment.

5

The Secretary of State may terminate the appointment of a member of the Board if satisfied that—

• (a) he has had his estate sequestrated, or has been adjudged bankrupt or has granted a trust deed for or entered into an arrangement with his creditors;

• (b) he is unable to carry out his duties as a Board member by reason of physical or mental illness;

• (c) he has been absent from meetings of the Board for a period longer than six consecutive months without the permission of the Board; or

• (d) he is otherwise unable or unfit to discharge the functions of a member of the Board, or is unsuitable to continue as a member.

Remuneration of members

6

• (1) The Board may—

• (a) pay to its members such remuneration; and

• (b) make provision for the payment of such pensions, allowances or gratuities to or in respect of its members,

as the Secretary of State may, . . . determine.

• (2) Where a person ceases to be a member of the Board otherwise than on the expiry of his term of office, and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Secretary of State may, . . . direct the Board to make that person a payment of such amount as the Secretary of State may, . . . determine.

Staff

7

• (1) The Board shall, after consultation with, and subject to the approval of, the Secretary of State, appoint on such terms and conditions as it may determine a person to be the principal officer of the Board.

• (2) The principal officer shall be responsible to the Board for the exercise of its functions.

8

• (1) Subject to paragraph 9 below, the Board may appoint, on such terms and conditions as it may determine, such other employees as it thinks fit.

• (2) A determination as to terms and conditions under paragraph 7(1) or sub-paragraph (1) above shall be subject to the approval of the Secretary of State . . ..

• (3) The Board shall, in respect of such of its employees as it may determine, with the approval of the Secretary of State . . . make such arrangements for providing pensions, allowances or gratuities as it may determine; and such arrangements may include the establishment and administration, by the Board or otherwise, of one or more pension schemes.

• (4) The reference in sub-paragraph (3) above to pensions, allowances or gratuities in respect of employees of the Board includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any such employee who suffers loss of office or employment.

• (5) If an employee of the Board becomes a member of the Board and was by reference to his employment by the Board a participant in a pension scheme established and administered by it for the benefit of its employees—

• (a) the Board may determine that his service as a member shall be treated for the purposes of the scheme as service as an employee of the Board whether or not any benefits are to be payable to or in respect of him by virtue of paragraph 6 above; but

• (b) if the Board determines as aforesaid, any discretion as to the benefits payable to or in respect of him which the scheme confers on the Board shall be exercised only with the consent of the Secretary of State . . ..

9

• (1) The Board shall, not later than such date as the Secretary of State may determine, make an offer of employment by the Board to each person employed immediately before that date—

• (a) by the Law Society for the purpose of their functions under the Legal Aid (Scotland) Act 1967; and

• (b) in the civil service of the State wholly or mainly in connection with the assessment of a person’s means under section 4 of that Act.

• (2) The terms of the offer shall be such that they are, taken as a whole, not less favourable to the person to whom the offer is made than the terms on which he is employed on the date on which the offer is made.

• (3) For the purposes of sub-paragraph (2) above no account shall be taken of the fact that employment with the Board is not employment in the service of the Crown.

• (4) An offer made in pursuance of this paragraph shall not be revocable during the period of 3 months commencing with the date on which it is made.

10

• (1) Where a person becomes an employee of the Board on acceptance of an offer made under paragraph 9 above, then, for the purposes of the Employment Rights Act 1996, his period of employment with the Law Society or, as the case may be, in the civil service of the State, shall count as a period of employment by the Board, and the change of employment shall not break the continuity of the period of employment.

• (2) Where an offer is made in pursuance of paragraph 9(1) above to any person employed as is mentioned in that paragraph, none of the agreed redundancy procedures applicable to such a person shall apply to him and—

• (a) where a person employed as is mentioned in sub-paragraph (a) of that paragraph ceases to be so employed—

• (i) on becoming a member of the staff of the Board in consequence of that paragraph; or

• (ii) having unreasonably refused the offer,

. . . he shall not be treated for the purposes of any scheme under section 12 of the Legal Aid (Scotland) Act 1967 as having been retired on redundancy;

• (b) where a person employed as is mentioned in sub-paragraph (b) of that paragraph ceases to be so employed on becoming a member of the staff of the Board in consequence of that paragraph, he shall not be treated for the purposes of any scheme under section 1 of the Superannuation Act 1972 as having been retired on redundancy.

• (3) Without prejudice to sub-paragraph (2) above, where a person has unreasonably refused an offer made to him in pursuance of paragraph 9 above, the Law Society or, as the case may be, the Secretary of State shall not terminate that person’s employment unless it or, as the case may be, he has first had regard to the feasibility of employing him in a suitable alternative position with the Law Society or, as the case may be, in the civil service of the State.

• (4) Where a person continues in employment in the Law Society or, as the case may be, the civil service of the State either—

• (a) not having unreasonably refused an offer made to him in pursuance of this paragraph, or

• (b) having been placed in a suitable alternative position as mentioned in sub-paragraph (3) above,

he shall be treated for all purposes as if the offer mentioned in paragraph 9(1) above had not been made.

11

• (1) Any dispute as to whether an offer under sub-paragraph (1) of paragraph 9 above complies with sub-paragraph (2) of that paragraph shall be referred to and be determined by an employment tribunal.

• (2) An employment tribunal shall not consider a complaint referred to it under sub-paragraph (1) above unless the complaint is presented to the tribunal before the end of the period of 3 months beginning with the date of the offer of employment or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months.

• (3) Subject to sub-paragraph (4) below there shall be no appeal from the decision of an employment tribunal under this paragraph.

• (4) An appeal to the Employment Appeal Tribunal may be made only on a question of law arising from the decision of, or in proceedings before, an employment tribunal under this paragraph.

Proceedings

12

• (1) Subject to anything in regulations made by the Secretary of State under this Act, the Board may regulate its own proceedings.

• (2) The Board may make such arrangements as it considers appropriate for the discharge of its functions, including the delegation of specified functions.

• (3) Committees may be appointed and may be dissolved by the Board, and may include, or consist entirely of, persons who are not members of the Board.

• (4) A committee shall act in accordance with such directions as the Board may from time to time give, and the Board may provide for anything done by a committee to have effect as if it had been done by the Board.

• (5) The validity of any proceedings of the Board or of any committee appointed by the Board shall not be affected by any vacancy among its members or by any defect in the appointment of any member.

Allowances

13

The Board may pay to each of its members and the members of any committee such reasonable allowances in respect of expenses or loss of remuneration as the Secretary of State may, . . ., determine.

Instruments

14

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

Board not dominus litis

15

Nothing done by the Board for the purpose of securing that legal aid or advice and assistance is available to any person in connection with any proceedings shall render it liable to be held to bedominus litis in relation to the proceedings.

SCHEDULE 2

Part I — Courts in which Civil Legal Aid is Available

1

Civil legal aid shall be available in relation to civil proceedings in—

• the Supreme Court, in references, appeals and applications for special leave to appeal under paragraphs 10, 12 , 13(b), 32 and 33 of Schedule 6 to the Scotland Act 1998;

• the Supreme Court, in appeals from the Court of Session;

• the Court of Session;

• the Lands Valuation Appeal Court;

• the Scottish Land Court;

• the Sheriff Appeal Court;

• the sheriff court,

and in relation to proceedings—

• before any person to whom a case is referred in whole or in part by a court mentioned above;

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• in the Lands Tribunal for Scotland;

• in the Employment Appeal Tribunal;

• before the Proscribed Organisations Appeal Commission;

• comprising an appeal to the Social Security Commissioners;

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .;

• before the First-tier Tribunal for Scotland of the type described in paragraph 2A;

• in or with respect to an appeal to the Upper Tribunal for Scotland a (including an application for permission to appeal);

• before the Upper Tribunal of the type described in paragraph 3.

2

For the purposes of section 13 of this Act, proceedings in the European Court of Justice on a reference, under Article 267 of the Treaty on the Functioning of the European Union, made by a court mentioned in paragraph 1 above are part of the proceedings in the court making the reference.

Part II — Excepted Proceedings

1

Subject to section 14(1C) and paragraph 2 below, civil legal aid shall not be available in proceedings which are wholly or partly concerned with defamation or verbal injury.

2

The making of a counterclaim for defamation or verbal injury in any proceedings shall not of itself affect the availability of legal aid to the other party . . . .

3

Civil legal aid shall not be available in relation to —

• (a) election petitions under the Representation of the People Act 1983 ;

• (b) simplified divorce applications under the Rules of Procedure of the Court of Session or the sheriff court;

• (c) small claims processes at first instance under section 35(2) of the Sheriff Courts (Scotland) Act 1971 summary causes); and

• (d) petitions by a debtor for the sequestration of his estate under section 5(2)(a) of the Bankruptcy (Scotland) Act 1985 .

SCHEDULE 3

The Maintenance Orders (Reciprocal Enforcement) Act 1972 (c.18)

1

• (1) In section 31(1) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 for the words from “secretary” where it first occurs to “taking” there shall be substituted the words:—

Secretary of the Law Society of Scotland who shall send the application and any accompanying documents to a solicitor practising in the sheriff court within the jurisdiction of which that other person resides or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate, for the purposes of enabling the solicitor to take

.

• (2) In section 32 of that Act—

• (a) after subsection (7) there shall be inserted the following subsections—

(7A) The Secretary of State on receiving notice under subsection (6) above shall send a copy of the registered order and of the related documents to the Secretary of the Law Society of Scotland who shall send the copy of the order and of the related documents to a solicitor practising in the registering court or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate for the purpose of enabling the solicitor to take, on behalf of the person entitled to the payments for which the order provides, such steps as appear to the solicitor appropriate to enforce the order. (7B) Where an order is registered in the sheriff court by virtue of subsection (3) above, any provision of the order by virtue of which the payments for which the order provides are required to be made through or to any officer or person on behalf of the person entitled thereto shall be of no effect so long as the order is so registered.

;

• (b) subsection (9)(e) of that section shall be omitted.

• (3) In section 34(5) of that Act, for paragraph (b) there shall be substituted the following paragraph—

(b) for subsection (3) there shall be substituted the following subsection— (3) Where the Secretary of State receives from the appropriate authority in a convention country an application by a person in that country for the variation of a registered order, he shall, if the registering court is a sheriff court, send the application, together with any documents accompanying it, to the Secretary of the Law Society of Scotland who shall send the application and any accompanying documents to a solicitor practising in the registering court or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate, for the purpose of enabling the solicitor to take on behalf of the applicant such steps as appear to the solicitor appropriate in respect of the application.’.

.

2

• (1) Section 43A of that Act shall be amended as follows.

• (2) In subsection (1) for the words “section 2(1) and (6)(c), 3 and 4 of the Legal Aid (Scotland) Act 1967” there shall be substituted the words “sections 15 and 17 of the Legal Aid (Scotland) Act 1986”.

• (3) In subsection (2) for the words “sections 2(1) and (6)(c), 3 and 4 of the said Act of 1967”, there shall be substituted the words “sections 15 and 17 of the said Act of 1986”.

• (4) In subsection (3) for the words from “legal advice” to “said Act of 1972)”, where they second occur, there shall be substituted the words “advice and assistance under the said Act of 1986, shall, notwithstanding any financial conditions or requirements to make contributions imposed by sections 8 and 11 of that Act,”.

The House of Commons Disqualification Act 1975 (c.24)

3

In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (other disqualifying offices) there shall be inserted (at the appropriate place in alphabetical order) the following entry—

The Northern Ireland Assembly Disqualification Act 1975 (c.25)

4

In Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (other disqualifying offices) there shall be inserted (at the appropriate place in alphabetical order) the following entry—

The Sex Discrimination Act 1975 (c. 65)

5

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

The Race Relations Act 1976 (c.74)

6

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

The Solicitors (Scotland) Act 1980 (c.46)

7

In section 35(4) of the Solicitors (Scotland) Act 1980 for paragraph (b) there shall be substituted—

(b) who is in employment to which Part V of the Legal Aid (Scotland) Act 1986 applies;

.

8

• (1) Section 51 of that Act shall be amended as follows.

• (2) In subsection (2) after the word “client” there shall be inserted the words “or against the Scottish Legal Aid Fund”.

• (3) In subsection (3) after paragraph (d) there shall be inserted the following paragraph—

(e) the Scottish Legal Aid Board.

.

The Tenants’ Rights, Etc. (Scotland) Act 1980 (c.52)

9

In section 9B(4) of the Tenants’ Rights, Etc. (Scotland) Act 1980 for the words “Legal Aid and Advice (Scotland) Acts 1967 and 1972 and to any provision of those Acts for payment of any sum into the legal aid fund” there shall be substituted the words “Legal Aid (Scotland) Act 1986 and to any provision of that Act for payment of any sum into the Scottish Legal Aid Fund”.

SCHEDULE 4

The Legal Aid (Scotland) fund

1

• (1) On the appointed day the Legal Aid (Scotland) Fund (“the Old Fund”) established under section 9 of the Legal Aid (Scotland) Act 1967 (“the 1967 Act”) shall be wound up.

• (2) If, as at the appointed day, after taking account of all receipts and expenses of the Law Society attributable to the 1967 Act or to their functions under the Legal Advice and Assistance Act 1972 (“the 1972 Act”), there is in relation to the Old Fund any surplus or deficit—

• (a) such surplus shall be paid by the Law Society to the Secretary of State; and

• (b) such deficit shall be made up by payment to the Law Society by the Secretary of State of the amount of the deficit.

• (3) Notwithstanding their repeal by this Act—

• (a) sections 8(10) and (11) and 11 of the 1967 Act shall continue to have effect for the purposes of requiring the Law Society to account for the Old Fund and to report on its discharge of its functions under that Act up to the appointed day; and

• (b) section 9(5) of that Act shall continue to have effect for the purposes of any determination as to the expenses or receipts of the Law Society,

and, if the appointed day falls on a day which is not the last day of the financial year (for the purposes of the said section 11), references in those sections to the financial year shall be construed as references to the period commencing on the day immediately following the end of the last complete financial year and ending with the appointed day.

Rights, obligations and property

2

Subject to paragraph 1 above, on the appointed day all rights, obligations and property of the Law Society which are referable to its functions under the 1967 Act or under the 1972 Act shall become rights, obligations and property of the Board.

Legal aid and advice and assistance

3

• (1) Nothing in this Act shall affect any legal aid under the 1967 Act or advice and assistance under the 1972 Act in respect of which an application has been determined before the appointed day; and, notwithstanding the repeal by this Act of these Acts, they and any schemes, regulations, orders or rules of court made under them shall continue to have effect for the purposes of such legal aid or advice and assistance.

• (2) For the purposes of sub-paragraph (1) above, where the 1967 Act or the 1972 Act or any such scheme, regulation, order or rule of court—

• (a) requires or enables anything to be done by the Law Society or any of its committees or by any person on its behalf; or

• (b) requires or enables the person in receipt of such legal aid or advice and assistance to do anything in relation to the Law Society,

that thing shall, on and after the appointed day, be required or, as the case may be, enabled to be done by or in relation to the Board.

• (3) Any payments which are required to be made into or out of the Old Fund in connection with such legal aid or advice and assistance shall, on and after the appointed day, be made into or out of the Fund; and for the purposes of this sub-paragraph, any reference in the 1967 Act or the 1972 Act to the Old Fund shall be construed as a reference to the Fund.

4

• (1) Any application for legal aid duly made under the 1967 Act or for advice and assistance duly made under the 1972 Act which has been made, but not determined, before the appointed day shall be treated as an application duly made under this Act.

• (2) For the purposes of this paragraph and paragraph 3 above an application for legal aid is determined—

• (a) in the case of legal aid in connection with—

• (i) civil proceedings (including an appeal in such proceedings);

• (ii) an appeal in criminal proceedings; or

• (iii) an appeal against the decision of the sheriff under Part III of the Social Work (Scotland) Act 1968,

when a legal aid certificate is issued or refused;

• (b) in the case of legal aid in connection with—

• (i) criminal proceedings; or

• (ii) proceedings before the sheriff under Part III of the Social Work (Scotland) Act 1968,

when the court grants or refuses legal aid.

• (3) For the purposes of this paragraph and paragraph 3 above an application for advice and assistance is determined when the solicitor to whom the application is made agrees or, as the case may be, refuses to accept the application and to provide advice and assistance.

Pensions

5

Any arrangements made by the Law Society under section 12 of the 1967 Act in respect of any person shall be treated on and after the appointed day (so far as may be necessary to preserve their effect) as having been made under paragraph 8(3) of Schedule 1 to this Act, and any pension scheme administered by the Law Society immediately before the appointed day shall be deemed to be a pension scheme established and administered by the Board under that paragraph and shall continue to be administered accordingly.

General

6

• (1) In this Schedule “the appointed day” means the day appointed by the Secretary of State under section 46(2) of this Act for the coming into force of section 4 thereof.

• (2) Subject to sub-paragraph (1) above, expressions used in this Schedule and in the 1967 Act or, as the case may be, in the 1972 Act shall have the same meaning in this Schedule as they do in that Act.

Schedule 5

Powers of the Board.

4A

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

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

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

• (2) The matters are—

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

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

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

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

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

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

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

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

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

• (9) The Scottish Ministers may at any time—

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

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

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

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

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

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

• (a) any civil legal aid, advice and assistance or children's legal aid provided by any solicitor or counsel;

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

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

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

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

Definitions.

8A

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

• (a) the financial limits in section 8 ; or—

• (b) the criteria mentioned in section 9A(2).

• (1A) Regulations under subsection (1) may also provide that, in such circumstances as may be prescribed in the regulations, section 11(2) is not to apply in respect of advice and assistance made available to a relevant client.

• (2) In subsections (1) and (1A), “relevant client” means a client who is

• (a) a person to whom section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016 applies

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

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) a person who is detained under section 41 of, or Schedule 7 to, the Terrorism Act 2000, or

• (e) a person who is detained under Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019.

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

23A

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

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

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

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

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

25AA

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

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

• (3) Where—

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

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

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

• (4) Notwithstanding subsection (3) above—

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

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

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

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

25AB

• (1) This section shall apply to criminal legal aid in connection with—

• (a) any reference, appeal or application for special leave to appeal to the Supreme Court under paragraph 11, 13(a) or 33 of Schedule 6 to the Scotland Act 1998; or

• (b) 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.

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

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

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

• (2A) 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 this section which is subject to conditions by virtue of subsection (2A) may apply to the Board for a review of any such condition.

• (4) Criminal legal aid shall not be available under this section in connection with a reference under paragraph 11 or 33 of Schedule 6 to the Scotland Act 1998 or under section 288ZB of the Criminal Procedure (Scotland) Act 1995 where criminal legal aid was made available under section 23 , 23A, 24 or 25 of this Act in connection with the proceedings in which the reference is made.

Part IVA — Criminal Legal Assistance

Registration

Regulations may apply Part II to representation.

25A

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

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

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

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

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

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

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

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

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

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

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

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

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

• (a) is already registered; or

• (b) has also applied for registration.

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

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

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

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

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

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

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

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

Code of practice

25B

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

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

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

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

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

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

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

• (ii) the frequency of meetings with the client;

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

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

• (v) the conduct of relations with the prosecution;

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

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

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

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

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

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

• (ii) office procedures;

• (iii) time recording systems;

• (iv) instructions given to the staff,

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

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

• (3) The Board shall—

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

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

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

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

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

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

• (a) return the draft to the Board; and

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

• (7) The Board—

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

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

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

25C

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

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

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

Removal of name from Register

25D

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to a registered solicitor; and

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

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

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

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

25E

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

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

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

it shall remove his name from the Register.

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

25F

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

• (a) the Register;

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

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

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

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

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

28A

• (1) The Secretary of State . . . may by regulations made under this section empower the Board to employ solicitors for the purpose of providing criminal legal assistance.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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