OpenLegislation

The Legal Aid (Supreme Court) (Scotland) Regulations 2009

S.S.I. 2009/312 · Made 8 September 2009 · Extends to Scotland

Up to date with all changes known to legislation.gov.uk, revised to 24 June 2013.

Legal Aid And Advice

Made 8th September 2009

Laid before the Scottish Parliament 9th September 2009

Coming into force 1st October 2009

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 33(2) and (3) and 36(1) and (2)(a) and (c) of the Legal Aid (Scotland) Act 1986f1 and all other powers enabling them to do so.

Annotations to the whole text

Footnotes

f1

1986 c.47. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).

Contents

  1. 1Citation and commencement
  2. 2Application
  3. 3Amendment of the Civil Legal Aid (Scotland) (Fees) Regulations 1989
  4. 4Amendment of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989
  5. 5Amendment of the Legal Aid in Contempt of Court Regulations 1992
  6. 6Amendment of the Criminal Legal Aid (Scotland) Regulations 1996
  7. 7Amendment of the Legal Aid (Scotland) (Children) Regulations 1997 Repealed
  8. 8Amendment of the Civil Legal Aid (Scotland) Regulations 2002
  9. 9Transitional provision
  10. Signature
  11. Explanatory note

1Citation and commencementI1

These Regulations may be cited as the Legal Aid (Supreme Court) (Scotland) Regulations 2009 and come into force on 1st October 2009.

2ApplicationI1

These Regulations do not apply in respect of proceedings in the House of Lords where before 1st October 2009 the proceedings concluded and a question or dispute as to the amount of fees or outlays allowable to the solicitor, or as to the amount of fees allowable to counsel, was referred for taxation to the Auditor of the Court of Session.

3Amendment of the Civil Legal Aid (Scotland) (Fees) Regulations 1989I1

(1)

The Civil Legal Aid (Scotland) (Fees) Regulations 1989f1 are amended in accordance with paragraphs (2) to (7).

(2)

In regulation 2(1)—

(a)

in the definition of “auditor”—

(i)

in sub-paragraph (a) omit “, House of Lords”; and

(ii)

for sub-paragraph (e) substitute—

“(e)

in relation to proceedings in the Supreme Court, the Registrar of the Supreme Court;”; and

(b)

in the definition of “right of audience” for “, the House of Lords and the Judicial Committee of the Privy Council” substitute “and the Supreme Court”.

(3)

In regulation 2(1A)(a) for “House of Lords or the Judicial Committee of the Privy Council” substitute “Supreme Court”.

(4)

In regulation 5(3)—

(a)

for “Judicial Committee of the Privy Council” substitute “Supreme Court on appeal from the Court of Session or”; and

(b)

omit “, 12, 13(b), 32” and “House of Lords,”.

(5)

In regulation 10(2) for “Judicial Committee of the Privy Council, House of Lords” substitute “Supreme Court”.

(6)

In regulation 10(2A) for “House of Lords or the Judicial Committee of the Privy Council” substitute “Supreme Court”.

(7)

In regulation 12A—

(a)

in paragraph (1) for “Judicial Committee of the Privy Council” in both places it occurs substitute “Supreme Court”; and

(b)

in paragraph (4) for “Board of the Judicial Committee of the Privy Council” substitute “panel of Justices, as defined by rule 3(2) of the Supreme Court Rules 2009f2,”.

4Amendment of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989I1

(1)

The Criminal Legal Aid (Scotland) (Fees) Regulations 1989f1 are amended in accordance with paragraphs (2) to (7).

(2)

In regulation 2(1), in the definition of “right of audience”, for “Judicial Committee of the Privy Council” substitute “Supreme Court”.

(3)

For regulation 11(1)(b) substitute—

“(b)

the Supreme Court, the matter shall be referred for taxation to the Registrar of the Supreme Court; or”.

(4)

In regulation 11A—

(a)

in paragraph (1), for “Judicial Committee of the Privy Council” in both places it occurs, substitute “Supreme Court”; and

(b)

in paragraph (4), for “Board of the Judicial Committee of the Privy Council” substitute “panel of Justices, as defined by rule 3(2) of the Supreme Court Rules 2009,”.

(5)

In the heading to Schedule 1 and in the definition of “court” in paragraph 7 of that Schedule, for “Judicial Committee of the Privy Council” substitute “Supreme Court”.

(6)

In the heading to Schedule 3 for “Judicial Committee of the Privy Council” substitute “Supreme Court”.

(7)

In Schedule 3—

(a)

for “Judicial Committee” substitute “Supreme Court” in—

(i)

paragraph 2(c)(vi) of the notes on operation; and

(ii)

paragraph 1(c) of the Table of Fees; and

(b)

in paragraph 1(a) of the Table of Fees for “petition for leave to appeal” substitute “application for permission to appeal”.

5Amendment of the Legal Aid in Contempt of Court Regulations 1992I1

(1)

The Legal Aid in Contempt of Court Proceedings (Scotland) Regulations 1992f1 and the Legal Aid in Contempt of Court Proceedings (Scotland) (Fees) Regulations 1992f2 are amended in accordance with paragraph (2).

(2)

In regulation 2(1) of both sets of Regulations, in the definition of “right of audience” for “, the House of Lords and the Judicial Committee of the Privy Council” substitute “and the Supreme Court”.

6Amendment of the Criminal Legal Aid (Scotland) Regulations 1996I1

(1)

The Criminal Legal Aid (Scotland) Regulations 1996f1 are amended in accordance with paragraphs (2) and (3).

(2)

In regulation 2(1) in the definition of “right of audience” and in regulation 14(1)(a), for “Judicial Committee of the Privy Council” substitute “Supreme Court”.

(3)

For regulation 4(1)(k) substitute—

“(k)

proceedings in the Supreme Court on appeal from the High Court of Justiciary under paragraph 13 of Schedule 6 to the Scotland Act 1998f2 including any application for permission to appeal.”.

7Amendment of the Legal Aid (Scotland) (Children) Regulations 1997F1

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

8Amendment of the Civil Legal Aid (Scotland) Regulations 2002I1

(1)

The Civil Legal Aid (Scotland) Regulations 2002f1 are amended in accordance with paragraphs (2) to (9).

(2)

In regulation 2(1), in the definition of “right of audience”, for “, the House of Lords and the Judicial Committee of the Privy Council” substitute “and the Supreme Court”.

(3)

In regulation 2(2)(a) for “House of Lords or the Judicial Committee of the Privy Council” substitute “Supreme Court”.

(4)

For regulation 4(1)(e) substitute—

“(e)

proceedings in the Supreme Court—

(i)

on appeal from the Court of Session; or

(ii)

by way of application for permission to appeal in terms of paragraph 13 of Schedule 6 to the Scotland Act 1998;”.

(5)

Omit regulation 4(1)(j).

(6)

In regulation 18(2)(t) for “House of Lords or the Judicial Committee of the Privy Council” substitute “Supreme Court”.

(7)

In regulation 21(1)(a) for “Judicial Committee of the Privy Council or the House of Lords” substitute “Supreme Court”.

(8)

In regulation 43—

(a)

in the heading to that regulation for “House of Lords” substitute “Supreme Court”; and

(b)

for “Clerk of Parliaments” in both places it occurs substitute “Registrar of the Supreme Court”.

(9)

In regulation 45(3) for “, the House of Lords or the Judicial Committee of the Privy Council” substitute “or the Supreme Court”.

9Transitional provisionI1

For the purposes of the Regulations amended by these Regulations, the following proceedings are to be treated as if they were proceedings in the Supreme Court:—

(a)

proceedings in the Judicial Committee of the Privy Council or the House of Lords which concluded before 1st October 2009; and

(b)

proceedings which transferred from the House of Lords or the Judicial Committee of the Privy Council to the Supreme Court in accordance with paragraph 3 of Schedule 10 to the Constitutional Reform Act 2005f1.

Signature

KENNY MACASKILL

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

8th September 2009

Explanatory note

(This note is not part of the Regulations)

These Regulations amend legal aid legislation in consequence of the transfer of jurisdictions from the House of Lords and the Judicial Committee of the Privy Council to the Supreme Court. That transfer (provided for by virtue of section 40 of the Constitutional Reform Act 2005) and the amendments made by these Regulations will take effect on 1st October 2009.

Fees and outlays for work done in relation to proceedings in the House of Lords or the Judicial Committee of the Privy Council may not have been calculated or, as the case may be, subjected to taxation before 1st October 2009. Transitional scenarios are dealt with as follows:

Regulation 2 provides that these Regulations do not apply in respect of proceedings in the House of Lords where the proceedings were concluded and a reference for taxation made before the transfer of jurisdiction. Any dispute or question as to the amount of fees or outlays in respect of those proceedings will therefore continue to be dealt with by the Auditor of the Court of Session after 1st October 2009 as it would have been before that date.

Any dispute or question as to the amount of fees or outlays in respect of proceedings in the Judicial Committee of the Privy Council would, before 1st October 2009, be referred for taxation to the Registrar of that court. The effect of regulation 9(a) is that after 1st October 2009 any such dispute or question will be referred for taxation to the Registrar of the Supreme Court. So too will any dispute or question relating to proceedings in the House of Lords where a reference for taxation has not been made to the Auditor of the Court of Session before that date and regulation 2 therefore does not apply.

As a result of the transfer of jurisdictions, some proceedings begun in the House of Lords or the Judicial Committee of the Privy Council will continue in the Supreme Court. Regulation 9(b) provides that for the purposes of the legal aid legislation amended by these Regulations, such transferred proceedings are deemed to have been conducted wholly in the Supreme Court.