Legal Aid (Scotland) Act 1986

• “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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

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

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

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

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

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

• (9A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contracts for the provision of criminal legal assistance

33A

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

• (2) Regulations under this section may prescribe—

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

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

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

• (a) withhold payments under the contract; and

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

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

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

to a registered solicitor.

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

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

• (a) firstly, out of any amount payable by the client in accordance with section 11(2) , 11A(2) or 25AC(3) of this Act;

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

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

• (5A) In subsection (5), 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), section 25AC(4)(a), or any regulations made under section 33ZA(1)).

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

35A

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

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

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

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

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

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

• (a) a solicitor, an employee of the solicitor or an employee of the solicitor's firm may be committing a criminal offence in connection with children's legal assistance,

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

• (c) a solicitor or firm whose name appears on the register maintained under section 28M(1) is or may not be complying with the code of practice under section 28N for the time being in force,

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

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

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

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

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

• (b) if any documents are produced—

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

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

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

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

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

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

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

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

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

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

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

Power of entry

35B

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

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

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

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

• (ca) a solicitor whose name appears on the register maintained under section 28M(1) may not be complying with the code of practice under section 28N for the time being in force; or

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

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

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

• (a) search the premises named in the warrant;

• (b) in the case mentioned in subsection (2A), take possession of any documents which appear to him to relate, wholly or partly, to any criminal legal assistance provided in or from those premises;

• (ba) in the case mentioned in subsection (2B), take possession of any documents which appear to him to relate, wholly or partly, to any children's legal assistance provided in or from those premises;

• (c) take copies of any such documents;

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

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

• (2A) The case mentioned in subsection (2)(b) is where the warrant is issued in pursuance of—

• (a) paragraph (a), (b) or (c) of subsection (1), or

• (b) paragraph (d) of subsection (1) where the requirement to produce the documents was made under subsection (1) of section 35A.

• (2B) The case mentioned in subsection (2)(ba) is where the warrant is issued in pursuance of—

• (a) paragraph (ca) of subsection (1), or

• (b) paragraph (d) of subsection (1) where the requirement to produce the documents was made under subsection (1A) of section 35A.

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

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

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

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

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

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

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

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

Suspension of payments to solicitor

35C

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

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

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

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

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

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

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

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

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

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

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

41A

• (1) The Secretary of State may by regulations made under this section provide that any reference in, under or by virtue of this Act to “ criminal legal assistance ” shall relate, for any of the purposes of this Act, to such class or classes of criminal legal assistance as he thinks appropriate.

• (2) Without prejudice to the generality of subsection (1) above, the power conferred by that subsection may be exercised by reference to—

• (a) the class or classes of person who are to receive criminal legal assistance;

• (b) the class or classes of case in respect of which such assistance is to be given;

• (c) the nature of the work;

• (d) the place or places where the assistance is to be provided;

• (e) the period for which it is to be provided,

or to any combination of the foregoing; and different provision may be made under that subsection for different purposes, or in relation to different areas or different periods.

43A

• (1) Advice and assistance shall be available, in accordance with the provisions of this Act, in relation to the provision of executry services by executry practitioners . . . and conveyancing services by independent conveyancing practitioners, all within the meaning of section 23 (interpretation of sections 16 to 22) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 as they are so available in relation to the provision of the like services by solicitors.

• (2) Subject to any act of sederunt or act of adjournal made under subsection (7) of section 26 of that Act (consideration of applications made under 25) advice and assistance, civil legal aid and criminal legal aid shall be available, in accordance with the provisions of this Act, in relation to the provision of services by persons who have acquired rights to conduct litigation or, as the case may be, rights of audience by virtue of that section as they are so available in relation to the provision of the like services by solicitors and, where appropriate, by advocates.

• (3) Where advice and assistance, civil legal aid or criminal legal aid has been made available by virtue of this section, the provisions of this Act shall apply in relation to the person providing those services as they apply in relation to a solicitor or advocate providing like services.

SCHEDULE 1A

Register of advice organisations

1

• (1) An organisation which satisfies the Board that it complies with the relevant provisions of the adviser code shall be approved by the Board as an organisation that may approve a person to provide advice and assistance on behalf of the organisation; and the Board shall make an appropriate entry on the register of advice organisations.

• (2) An individual may apply for entry on the register of advice organisations as an organisation; and if the Board is satisfied that the individual complies with the relevant provisions of the adviser code in relation to an organisation, the Board shall approve the individual and treat the individual as an organisation for the purposes of this Schedule.

• (3) The Board must make the register of advice organisations available for public inspection, without charge, at all reasonable times.

• (4) In this Schedule an “organisation” includes—

• (a) a firm of solicitors;

• (b) an incorporated practice within the meaning of section 34(1A)(c) of the Solicitors (Scotland) Act 1980 (c. 46).

• (c) a licensed legal services provider.

Applications

2

• (1) An application for entry on the register of advice organisations shall be made in such form as the Board may determine, and shall be accompanied by such documents as the Board may specify.

• (2) On receipt of an application the Board shall make such enquiries as it thinks appropriate for the purposes of determining whether the applicant complies with the relevant provisions of the adviser code.

• (3) The Board may determine an application to be entered on the register of advice organisations by—

• (a) granting the application; or

• (b) refusing the application.

• (4) Where the Board decides to refuse an application it shall as soon as practicable thereafter send the applicant, by recorded delivery, a written note of its reasons.

Further provision on applications

3

• (1) In determining any application for entry on the register of advice organisations, the Board may limit the grant of the application to any of the particular categories of circumstances as specified by virtue of section 12B(1).

• (2) Where the Board limits the grant of an application as mentioned in sub-paragraph (1), the entry made on the register under paragraph 1(1) must state the categories in relation to which the organisation is registered; and any adviser approved by the organisation may provide advice and assistance under this Act only in relation to those categories.

Adviser code

4

• (1) The Board shall prepare a code of practice (an “adviser code”) in relation to advisers and registered organisations.

• (2) The adviser code prepared under sub-paragraph (1) must include—

• (a) the conditions to be complied with in order to qualify for registration;

• (b) the types of organisations eligible for registration;

• (c) the conditions to be complied with in order for a person to be approved by a registered organisation as an adviser;

• (d) the laying down of standards, conduct, practice and training expected in relation to—

• (i) the provision of advice and assistance by advisers;

• (ii) the supervision of such activity by registered organisations;

• (e) arrangements for dealing with complaints about the activities of advisers and registered organisations;

• (f) arrangements for monitoring the activities of advisers and registered organisations.

• (3) The adviser code prepared under sub-paragraph (1) has effect on such date as the Board may confirm.

• (4) But the adviser code may not have effect unless and until it has been—

• (a) approved by the Scottish Ministers; and

• (b) the Board has laid a copy of the prepared code before the Scottish Parliament.

• (5) The Board is to publish the adviser code in such way as, in its opinion, is likely to bring it to the attention of those interested in it.

• (6) The Board is to—

• (a) keep the adviser code under review; and

• (b) revise it where appropriate.

• (7) The provisions of this paragraph apply in relation to any revision of the adviser code as they apply in relation to the version originally prepared.

• (8) Registered organisations shall comply with the relevant requirements of the adviser code.

Monitoring

5

The Board is to monitor—

• (a) the provision of advice and assistance and related activities by advisers;

• (b) compliance with the adviser code by registered organisations.

Removal of name from the register of advice organisations

6

• (1) Where it appears to the Board (whether or not following a complaint made to it) that a registered organisation may not be, or may not have been, complying with the adviser code, it shall investigate the matter in such manner as it thinks fit.

• (2) Where the Board conducts an investigation under sub-paragraph (1) it must allow the registered organisation concerned the opportunity to make representations.

• (3) Following an investigation under sub-paragraph (1), the Board may give the registered organisation concerned an opportunity, within such time as it may specify, to remedy any defect in the compliance with the adviser code.

• (4) Where, after carrying out the procedures mentioned in sub-paragraph (1) and, where a time limit has been set under sub-paragraph (3), after the expiry of that time limit, the Board is satisfied that the registered organisation is not complying with the adviser code, it shall remove from the register of advice organisations the name of the organisation.

• (5) Where, after carrying out the procedures mentioned in sub-paragraph (1) and, where a time limit has been set under sub-paragraph (3), after the expiry of that time limit, the Board is satisfied that, regardless of whether or not there is current compliance with the code, the registered organisation has not complied with the code in a material regard, it may remove the name of the organisation from the register of advice organisations.

• (6) Where the Board decides to remove the name of an organisation from the register of advice organisations in accordance with sub-paragraph (4) it shall as soon as practicable thereafter send the organisation, by recorded delivery, a written note of its reasons.

Appeals

7

• (1) A decision by the Board to refuse an application under paragraph 2(3)(b) may be appealed by the applicant to the Court of Session within 21 days of the receipt of the notification of the Board's reasons under paragraph 2(4).

• (2) A decision by the Board under paragraph 6(4) or (5) to remove from the register of advice organisations the name of a registered organisation may be appealed to the Court of Session within 21 days of the receipt of the notification of the Board's reasons under paragraph 6(6); but the making of an appeal shall not have the effect of restoring the name to the register of advice organisations.

• (3) An appeal under sub-paragraph (1) or (2) may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit.

4

Subject to paragraph 5 below, civil legal aid shall not be available in relation to proceedings at first instance under the Debtors (Scotland) Act 1987, or Part 2 or 3 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)or Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) other than proceedings in connection with an application under section 1(1) or 3(1) of that Act of 1987 to a Lord Ordinary or to the sheriff in an ordinary cause.

5

Nothing in paragraph 4 above shall preclude any third party to proceedings under the Debtors (Scotland) Act 1987 or Part 2 or 3 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)or Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) from obtaining legal aid in connection with those proceedings.

The Sex Discrimination Act 1975 (c.65)

Editorial notes

[^c14060641]: Act applied by Extradition Act 1989 (c. 33, SIF 48), 9(3)

[^c14060661]: Act applied by Valuation and Rating (Scotland) Act 1956 (c. 60), s. 22 (3) (as substituted (1.4.1992) by Local Government Finance Act 1992 (c.14), ss. 99(1), 117(1), Sch. 13 para. 10; S.I. 1992/818, art. 2(a)) Act applied (1.4.1993) by Local Government Finance Act 1992 (c. 14), ss. 111 (9); S.I. 1993/575, art. 2(a) Act applied (with modifications) (S.) (15.3.1996) by S.I. 1996/716, art. 24(2) Act applied (1.9.2001) by 2001 c. 17, s. 6(3)(b) (with ss. 16(5), 78); S.I. 2001/2161, art. 2

[^c22566611]: Act modified (7.10.1996) by S.I. 1996/2447, reg. 7(1), Sch.2

[^c20845831]: Act applied (1.1.2004) by Extradition Act 2003 (c. 41), ss. 183, 221; S.I. 2003/3103, art. 2 (with arts. 3, 4 (as amended by S.I. 2003/3312))

[^c20845391]: Act amended by S.I. 1978/1910, art. 10, Sch. Pt. 1 (as amended (17.5.2004) by The European Communities (Services of Lawyers) Amendment (Scotland) Order 2004 (S.S.I. 2004/186), art. 7(a))

[^c20859511]: Act applied (with modifications) (1.10.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (S.I. 2010/1907), reg. 16, Sch. 2 (as amended by S.I. 2010/2430, regs. 15, 17) [Editorial note: these Regulations revoke and supersede S.I. 2010/875]

[^c20853491]: Words in s. 4(2)(a) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 68(2)(a), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(b)

[^c14060931]: Words inserted by Legal Aid Act 1988 (c. 34, SIF 77:1), s. 44, Sch. 4 Pt. I para. 1(a)

[^c20853471]: Words in s. 4(2)(a) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(2), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

[^c14060941]: Words in s. 4(2)(a) substituted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(2)(a)(i); S.I. 1997/2323, art. 6(2)

[^c20853551]: S. 4(2)(aza) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 74(1), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(c)

[^c14060951]: S. 4(2)(aa)(ab) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(2)(a)(ii); S.I. 1997/2323, art. 6(2)

[^c20847771]: S. 4(2)(ac) inserted (1.10.2007) by Equality Act 2006 (c. 3), ss. 40, 93(1), Sch. 3 para. 39(2) (with s. 92); S.I. 2007/2603, art. 2(d)

[^c20853511]: S. 4(2)(ac) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 68(2)(b), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(b)