Legal Aid (Scotland) Act 1986

• (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