Legal Aid (Scotland) Act 1986 in England

Subject to subsections (2) to (4) below, and to any exceptions and conditions prescribed by regulations made under this section or under section 9 of this Act, this Part of this Act applies to any advice and assistance.

This Part of this Act does not apply to advice and assistance provided to a person in connection with proceedings before a court or tribunal at a time when he is receiving legal aid in connection with those proceedings.

Subject to subsection (4) below and to section 9 of this Act, this Part of this Act does not apply to assistance by way of representation.

Except where subsection (2) above applies, this Part of this Act does apply, in the case of civil proceedings before a court or tribunal, to any step which consists only of negotiating on behalf of a person with a view to the settlement of a claim to which the proceedings relate.

The Board shall establish and maintain a register of advice organisations (“the register of advice organisations”) of organisations approved by the Board as registered organisations in relation to the provision of advice and assistance by persons approved by such organisations as advisers.

A person who—

may not be an adviser.

Schedule 1A makes further provision about advisers and registered organisations, the register of advice organisations, code of practice for advisers etc.

The Scottish Ministers may by regulations specify categories of circumstances for the purposes of paragraph (aa) of the definition of “advice and assistance” in section 6(1) of this Act.

The power under subsection (1) may specify different categories for different purposes.

In this Act—

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

The liability of a legally assisted person under an award of expenses F2in any proceedings shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay, having regard to all the circumstances including the means of all the parties and their conduct in connection with the dispute.

None of the following, namely a legally assisted person’s house, wearing apparel, household furniture and the tools and implements of his trade or profession shall—

except insofar as regulations made under this section may prescribe.

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.

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.

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.

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.

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.

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

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

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.

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

it shall remove his name from the Register.

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.

The Board shall make available for inspection, without charge—

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.

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.

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.

In relation to any solicitor who is employed by the Board in employment to which this Part of this Act applies, and in relation to any work performed, or other thing done or omitted to be done, by any such solicitor in the course of that employment—

shall have effect as if the Board were a firm of solicitors.

Nothing in subsection (1) above shall prohibit 2 or more solicitors employed by the Board in employment to which this Part of this Act applies from acting (including acting in any proceedings) for different parties having opposing or otherwise different interests in relation to the same matter.

This Part applies to children's legal aid.

In this Act, “children's legal aid” means representation by a solicitor and, where appropriate, by counsel in proceedings mentioned in F2subsections (3) and (3A), on the terms provided for in this Act, and includes all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to those proceedings.

The proceedings are—

The proceedings are, where regulations under section 28LB are made, proceedings before the sheriff and appeals from the sheriff under Part 4 of the Age of Criminal Responsibility (Scotland) Act 2019.

In this Part—

• “compulsory supervision order” has the meaning given by section 83 of F5the 2011 Act,

• F6“movement restriction condition” has the meaning given by section 84 of that Act,

• “pre-hearing panel” has the meaning given by section 79 of that Act,

• “secure accommodation authorisation” has the meaning given by section 85 of that Act.

Subsection (2) applies where—

If assistance by way of representation has not been made available to the child, children's legal aid is available to the child for the purposes of—

The Scottish Ministers may by regulations—

Subsection (2) applies in relation to proceedings under Part 10 or 15 of the 2011 Act (other than an appeal to the F2Sheriff Appeal Court or the Court of Session).

Children's legal aid is available to the child to whom the proceedings relate if, on an application made to the Board, the Board is satisfied that the conditions in subsection (3) are met.

The conditions are—

Subsection (5) applies in relation to an appeal to the F3Sheriff Appeal Court or the Court of Session under Part 15 of the 2011 Act.

Children's legal aid is available to the child to whom the proceedings relate if, on an application made to the Board, the Board is satisfied that—

Subsection (2) applies in relation to—

Children's legal aid is available to a relevant person in relation to the child to whom the proceedings relate if, on an application made to the Board, the Board is satisfied that the conditions in subsection (3) are met.

The conditions are—

Subsection (5) applies in relation to an appeal to the F3Sheriff Appeal Court or the Court of Session under Part 15 of the 2011 Act.

Children's legal aid is available to a relevant person in relation to the child to whom the appeal relates if, on an application made to the Board, the Board is satisfied that—

In this Part, “relevant person”—

Subsection (2) applies in relation to—

Children's legal aid is available to the individual if, on an application made to the Board, the Board is satisfied—

The Board must establish a procedure under which a person whose application for children's legal aid has been refused may apply to the Board for a review of the application.

The Board must establish a procedure under which any person receiving children's legal aid which is subject to conditions by virtue of section 28G may apply to the Board for a review of any such condition.

A person in receipt of children's legal aid (the “assisted person”) may be required by the Board to contribute to the Fund in respect of any proceedings in connection with which the assisted person is granted children's legal aid.

A contribution under subsection (1) is to be determined by the Board and may include—

Regulations under this section may prescribe different proportions or amounts for different amounts of disposable income and for different cases or classes of case.

The Scottish Ministers may by regulations modify this Part so as to—

If regulations are made making children's legal aid available to a child, the regulations must include provision—

The conditions are—

The matters are—

If regulations are made making children's legal aid available to a person other than the child to whom the proceedings relate, the regulations must include provision—

The conditions are—

In subsection (4)—

• “accompanying person” means a person entitled to accompany the child or other person to the children's hearing by virtue of rules under section 177 of the 2011 Act,

• “appropriate person” means—

  1. (a)

     for the purposes of subsection (2)(b), the child,

  2. (b)

     for the purposes of subsection (5)(b), the other person.

The Scottish Ministers may by regulations modify—

The Scottish Ministers may by regulations modify this Part so as to—

If regulations are made making children's legal aid available to a child, the regulations must include provision requiring the Board to be satisfied that the conditions in subsection (3) are met before children's legal aid is made available.

The conditions are—

If regulations are made making children's legal aid available to a person other than a child, the regulations must include provision requiring the Board to be satisfied that the conditions in subsection (5) are met before children's legal aid is made available.

The conditions are—

The Scottish Ministers may by regulations modify this Part so as to—

Regulations under subsection (1) may in particular made provision about—

Where regulations under subsection (1) include provision as is mentioned in subsection (2)(b), the regulations—

The Board must establish and maintain a register of—

A sole solicitor who wishes to provide children's legal assistance must be included in the register maintained under this section both as a solicitor and as a firm.

Only those solicitors who are included in the register maintained under this section may provide children's legal assistance.

Subject to subsection (5), a solicitor may provide children's legal assistance only when working in the course of a connection with a firm included in the register maintained under this section.

Where the Board employs a solicitor under sections 26 and 27 to provide children's legal assistance—

The Scottish Ministers may by regulations make provision about qualifications to be held by persons who may be included in the register maintained under this section.

Subsections (5) to (15) of section 25A apply in relation to the register maintained under this section as they apply in relation to the Register subject to the modifications mentioned in subsection (8).

Those modifications are—

The Board must prepare a draft code of practice in relation to the carrying out by solicitors of their functions with regard to the provision of children's legal assistance.

Different provision may be made for different cases or classes of case.

Subsections (3) to (8) of section 25B apply in relation to a draft code prepared under subsection (1) above as they apply in relation to a draft code prepared under subsection (1) of that section.

Solicitors and firms included in the register maintained under section 28M(1) must comply with the requirements of the code of practice under section 28N for the time being in force.

The Board must monitor the carrying out by those solicitors and firms of their duty under subsection (1).

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

Section 25D applies in relation to a solicitor or firm included in the register maintained under section 28M(1) and the code of practice under section 28N for the time being in force as it applies in relation to a registered solicitor or registered firm and the code subject to the modifications mentioned in subsection (2).

Those modifications are—

Subsection (2) applies where the Board is satisfied (whether on being informed by the solicitor concerned or otherwise) that a solicitor who is included in the register maintained under section 28M(1)—

The Board must remove the solicitor's name from the register.

Subsections (6) to (9) of section 25D (as applied by section 28Q) apply in relation to a solicitor whose name is removed from the register under subsection (2) above as they apply in relation to a solicitor whose name is removed from the register under subsection (4) of that section (as applied by section 28Q).

the solicitor or counsel providing legal aid shall not take any payment in respect of any advice given or anything done in connection with such proceedings during any period when legal aid was so available except for such payment as may be made, in accordance with this Act . . . F1; and

except as is mentioned in section 31(2) of this Act, no solicitor or counsel other than the solicitor or counsel referred to in paragraph (a) above shall advise or act for him in connection with the proceedings.

A claim for interim payment may be submitted to the Board by—

A claim for interim payment must—

If a claim for interim payment is submitted to the Board, the sum claimed must be paid out of the Fund in accordance with section 4(2)(ad) to the solicitor or counsel who submitted the claim.

But the Board may reject the claim if it appears to it that the sum claimed is likely to exceed the sum it would expect to be payable to the solicitor or counsel under section 4(2)(a) in connection with the provision of the legal aid or advice and assistance.

In forming an expectation about the sum payable under section 4(2)(a), for the purposes of subsections (2) and (4), no account is to be taken of the deduction that would be made under section 33(6) if the claim for interim payment were met.

This section applies where—

Where the sum paid out of the Fund exceeds the sum that would, but for section 33(6), be payable under section 4(2)(a) in connection with the provision of the legal aid or advice and assistance, the solicitor or (as the case may be) counsel is liable to the Board for the difference between the sums.

A firm is jointly and severally liable for a sum owed by a solicitor to the Board by virtue of subsection (2) if the interim payment referred to in that subsection was made to the firm on the solicitor’s instruction.

Where—

the Board may deduct all or part of the sum mentioned in paragraph (a) from the sum mentioned in paragraph (b).

This section is without prejudice to any other enactment or rule of law under which the difference between the sums mentioned in subsection (2) may be recovered.

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.

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.

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.

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

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

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—

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

This section shall have effect in relation to any right (however and whenever created or arising) which a person may have to be indemnified against expenses incurred by him in connection with any proceedings.

In determining in respect of any such right the reasonableness of any expenses, the possibility of avoiding them or part of them by taking advantage of the provisions of this Act shall be disregarded.

Where a person, having any such right to be indemnified against expenses, receives legal aid in connection with the proceedings, then the right shall enure also for the benefit of the Fund as if the expenses incurred by the Fund on his behalf in connection with the proceedings had been incurred by him.

Where—

the right to be indemnified shall be treated, for the purposes of subsection (3) above, as not being subject to that provision.

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.

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

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.

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

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

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

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.

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

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

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

Accordingly—

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).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1

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.

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

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;

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

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

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

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.

The principal officer shall be responsible to the Board for the exercise of its functions.

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—

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.

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.

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.

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

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

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.

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.

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.

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.

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.

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

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.

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).

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.

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

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

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

But the adviser code may not have effect unless and until it has been—

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.

The Board is to—

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.

Registered organisations shall comply with the relevant requirements of the adviser code.

the provision of advice and assistance and related activities by advisers;

compliance with the adviser code by registered organisations.

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.

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

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.

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.

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.

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.

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).

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.

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.

those transferred to it by section 16(1) of the Housing (Scotland) Act 2014, in relation to the following enactments—

those in relation to the Private Housing (Tenancies) (Scotland) Act 2016.

proceedings for payment of a sum of money not exceeding £3,000 (exclusive of interest and expenses), other than—

actions ad factum praestandum and proceedings for the recovery of possession of moveable property in which (in either case) there is included, as an alternative to the claim, a claim for payment of a sum of money not exceeding £3,000 (exclusive of interest and expenses).

“actions for personal injury” means actions to which section 17 or 18 of the Prescription and Limitation (Scotland) Act 1973 applies, and

“actions ad factum praestandum” includes actions for delivery and actions for implement but does not include actions for count, reckoning and payment.

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”.

In section 32 of that Act—

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.’.”.

Section 43A of that Act shall be amended as follows.

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”.

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”.

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,”.

Section 51 of that Act shall be amended as follows.

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

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

“(e)

the Scottish Legal Aid Board.”.

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.

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—

Notwithstanding their repeal by this Act—

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.

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.

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

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.

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.

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.