Legal Aid Act 1988 in Scotland

The following sections shall be substituted for sections 41 and 42 of the M1Administration of Justice Act 1985—

“ Application to legal aid complaints against barristers of disciplinary provisions.

41

(1)

The disciplinary provisions applicable to barristers shall apply to legal aid complaints relating to the conduct of barristers as they apply to other complaints about their conduct.

(2)

Subject to any exclusion or restriction made by those provisions, any disciplinary tribunal which hears a legal aid complaint relating to the conduct of a barrister may, if it thinks fit and whether or not it makes any other order, order that any fees—

(a)

otherwise payable in connection with his services under or in accordance with the Legal Aid Act 1988, or

(b)

otherwise chargeable in connection with his services in respect of advice or assistance made available under Part III of that Act,

shall be reduced or cancelled.

(3)

Accordingly, in so far as any of sections 9, 11, 15(6) and (7) and 25(2) of the Legal Aid Act 1988 (which relate to remuneration for legal aid work) has effect in relation to any fees reduced or cancelled by an order under subsection (2) above, it shall so have effect subject to the provisions of that order.

(4)

An appeal shall lie in the case of an order under subsection (2) above in the same manner as an appeal would lie in the case of any other order of such a tribunal.

(5)

The reference in subsection (2) above to a disciplinary tribunal is a reference to a tribunal acting under the disciplinary provisions applicable to barristers and it includes a reference to a member exercising any functions of the tribunal delegated to him.

Exclusion of barristers from legal aid work.

42

(1)

Subject to any exclusion or restriction made by the disciplinary provisions applicable to barristers, where a disciplinary tribunal hears a charge of professional misconduct or breach of professional standards against a barrister, it may order that he shall be excluded from legal aid work, either temporarily or for a specified period, if it determines that there is good reason for the exclusion arising out of—

(a)

his conduct in connection with any such services as are mentioned in section 40(1), or

(b)

his professional conduct generally.

(2)

Subsection (4) of section 41 shall apply to an order under subsection (1) as it applies to an order under subsection (2) of that section.

(3)

The disciplinary provisions applicable to barristers shall include provision enabling a barrister who has been excluded from legal aid work under this section to apply for an order terminating his exclusion from such work.

(4)

In this section—

(a)

the reference to a disciplinary tribunal shall be construed in accordance with section 41(5); and

(b)

references to a person being excluded from legal aid work are references to his being excluded from those who may be selected or assigned under section 32 of the Legal Aid Act 1988.”

The M1Legal Aid (Scotland) Act 1986 shall have effect subject to the amendments specified in Schedule 4 to this Act.

In section 4(2) (payments out of the Scottish Legal Aid Fund)—

In section 16—

In section 17 (contributions, etc.)—

In section 32 (a) (restriction on payment etc.), the words “, out of the Fund ” are repealed.

In section 33 (fees and outlays of solicitors and counsel) in subsection (1), for the words from “out ” to the end there shall be substituted the words—

“in respect of any fees or outlays properly incurred by him in so acting—

(a)

by the person concerned, to the extent to which a contribution has been determined for him under section 17 of this Act;

(b)

to the extent that such fees and outlays exceed any such contribution out of the Fund in accordance with section 4(2)(a) of this Act.”

In section 36(2) (regulations), in paragraph (b) at end add—

“and the power to substitute different amounts for the amount specified in section 10(2) of this Act includes power to substitute different amounts in relation to different cases or classes of case”.

In section 18 (expenses)—

In section 19(1) (expenses out of the Fund), for the words “to which this section applies ” there shall be substituted the words “to which a legally assisted person is party and which are finally decided in favour of an unassisted party ”.

In section 20(1) (supplementary), for the words “sections 18 and ” there shall be substituted the word “section ”.

In Schedule 1, paragraph 2(4) is repealed.

In Schedule 1 to the Public Records Act 1958 (definition of public records), there shall be inserted at the end of Part I of the Table at the end of paragraph 3 the following entry—

“

Lord Chancellor’s Department.

Legal Aid Board.

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F1In section 52 of the Telecommunications Act 1984, the following subsection shall be substituted for subsection (5)—

“(5)

A charge conferred by subsection (4) above is subject to—

(a)

any charge under the Legal Aid Act 1988 and any provision of that Act for payment of any sum to the Legal Aid Board;

(b)

any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986 and any provision of that Act for payment of any sum into the Scottish Legal Aid Fund; or

(c)

any charge under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and any provision of that Order for payment of any sum into the legal aid fund.”

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In section 21(1) of that Act, for the definition of “legally assisted person ” there shall be substituted the following—

““legally assisted person ”, in relation to any proceedings, means a person to whom representation under the Legal Aid Act 1988 has been granted for the purposes of the proceedings;”.

In section 21 of that Act, after subsection (4), there shall be inserted the following subsection—

“(4A)

Where one party to any proceedings is a legally assisted person then—

(a)

for the purposes of sections 16 and 17 of this Act, his costs shall be taken not to include either the expenses incurred on his behalf by the Legal Aid Board or the Lord Chancellor or, if he is liable to make a contribution under section 23 of the Legal Aid Act 1988, any sum paid or payable by way of contribution; and

(b)

for the purposes of sections 18 and 19 of this Act, his costs shall be taken to include the expenses incurred on his behalf by the Legal Aid Board or the Lord Chancellor (without any deduction on account of any contribution paid or payable under section 23 of the Legal Aid Act 1988) but, if he is liable to make such a contribution his costs shall be taken not to include any sum paid or payable by way of contribution.”

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In section 40 of the Administration of Justice Act 1985 (preliminary provisions concerning legal aid complaints), for the words from the beginning of paragraph (a) to the end there shall be substituted the words “the provision for any person of services under the Legal Aid Act 1988 including, in the case of a solicitor, provision for any person of such services in the capacity of agent for that person’s solicitor. ”

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In section 44 of that Act—

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