New Part 5b – Children’s Legal Assistance
301.Part 5B provides for the registration and quality assurance of solicitors providing children’s legal assistance. Schedule 5 of the Act inserts into section 41 of the 1986 Act (the 1986 Act’s interpretation section) a definition of “children’s legal assistance”. It is defined as comprising both children’s legal aid and assistance by way of representation provided in relation to a Children’s Hearing or connected court proceedings.
Section 28M – Register of solicitors and firms eligible to provide children’s legal assistance
302.This section requires SLAB to establish a register of solicitors eligible to provide children’s legal assistance and the firms with which those solicitors are associated. Subsection (2) provides that solicitors who operate as sole practitioners must be registered both as solicitor and firm. Subsection (3) makes registration a pre-condition for any solicitor who wants to provide children’s legal assistance. Subsection (4) provides that a registered solicitor will only be allowed to provide children’s legal assistance when working in connection with a registered firm.
303.Subsection (5) deals with registration requirements in relation to solicitors directly employed by SLAB. It provides that SLAB can only employ a solicitor to provide children’s legal assistance who is personally registered to do so. However SLAB is not to be regarded as a firm and, as such, need not itself be registered. Subsection (6) allows the Scottish Ministers to specify, in regulations, the qualifications to be required of solicitors seeking to be registered to provide children’s legal assistance.
304.Subsection (7) provides for section 25A(5) to (15) of the 1986 Act to apply in relation to the register established under subsection (1) as those provisions apply in relation to the register established under section 25A for the purposes of criminal legal assistance. Section 25A was inserted into the 1986 Act by the Crime and Punishment (Scotland) Act 1997.
305.Section 25A(5) allows SLAB to specify the form which an application for registration must take. Section 25A(6) requires SLAB to consult the Law Society of Scotland and such other persons as it considers appropriate before determining whether to register a solicitor or firm. Section 25A(7) provides that SLAB is not to consider a solicitor’s application for registration unless the firm with which he or she is connected is either already registered or has also applied for registration. If the solicitor is connected with more than one firm, section 25A(15) provides that only one of those firms needs to be registered. Section 25A(8) requires SLAB, on receipt of an application for registration, to make such enquiries as it thinks appropriate to determine whether the solicitor meets the requirements expected of a registered solicitor and authorises SLAB to use its powers under section 35A of the 1986 Act to require the solicitor or firm to produce information or documents for that purpose. Section 25A(9) provides for SLAB to enter the solicitor’s name on the register where SLAB is satisfied that it is appropriate to do so. Section 25A(10) prohibits SLAB from entering the name of a solicitor on the register where the solicitor is connected with a firm which is not already entered on the register. Again, section 25A(15) provides that if the solicitor is connected with more than one firm, only one of the firms needs to be registered. Section 25A(11) provides that the name of any registered firm with which the solicitor is connected should appear next to his or her name on the register. Section 25A(12) requires that where a solicitor’s application for registration is refused SLAB must notify the unsuccessful applicant and give reasons for its refusal. Section 25A(13) allows an unsuccessful applicant for registration 21 days within which to appeal SLAB’s decision to the Court of Session. Section 25A(14) clarifies that such an appeal may be on questions of fact or law and provides that, at the conclusion of the proceedings, the court may make such order as it thinks fit.
306.Subsection (8) sets out the modifications which will apply to sections 25A(5) to (15) of the 1986 Act in relation to the register for children’s legal assistance. In essence it ensures that terms relevant to the quality assurance regime for criminal legal assistance are construed as if they were references to the equivalent aspects of the quality assurance regime for children’s legal assistance.
Section 28N – Code of practice
307.This section requires SLAB to establish a code of practice which solicitors will be required to abide by when providing children’s legal assistance.
308.Subsection (3) applies section 25B(3) to (8) of the 1986 Act, which deals with the code of practice for providers of criminal legal assistance, to the code of practice which will be established under section 28N. Section 25B(3) requires SLAB to consult the Law Society of Scotland and such other persons as it considers appropriate on a draft of the code of practice. Section 25B(4) requires SLAB to send the draft code to the Secretary of State for approval. The function of the Secretary of State in this regard now rests with the Scottish Ministers. Section 25B(5) allows the Scottish Ministers to approve the draft code with or without modification. Section 25B(6) provides that the Scottish Ministers, having approved the draft code, must return it to SLAB and give SLAB instruction on when it is to come into force and the manner of its publication. Section 25B(7) requires SLAB to carry out the Scottish Ministers instructions under section 25B(6) and also obliges SLAB to make copies of the code available on request (SLAB may charge for doing so). Section 25B(8) requires SLAB to keep the code under review and to revise it as necessary. The same procedures apply to revisions of the code as apply to preparing the code for the first time.
Section 28P – Duty to comply with code of practice
309.This section requires registered solicitors and firms to adhere to the code of practice which is established under section 28N. Subsection (2) requires SLAB to monitor the compliance of solicitors and firms with the code of practice. Subsection (3) authorises SLAB to use its powers under sections 35A and 35B of the 1986 Act in doing so. Sections 35A and 35B were inserted into the 1986 Act by the Crime and Punishment (Scotland) Act 1997.
310.The powers conferred under section 35A of the 1986 Act include the power to require a solicitor to provide information and documents relating to the provision of children’s legal assistance. Any person who fails to comply with the requirement shall be guilty of an offence and liable to a fine. The powers conferred under section 35B of the 1986 Act provide for SLAB to apply for a warrant to search premises or take possession of documents. Any person who intentionally obstructs such a warrant shall be guilty of an offence and liable to a fine.
Section 28Q – Non-compliance with code of practice
311.This section applies section 25D of the 1986 Act in relation to the quality assurance regime for children’s legal assistance as it applies in relation to the quality assurance regime for criminal legal assistance.
312.Section 25D of the 1986 Act requires SLAB to investigate registered solicitors or firms where it suspects they are not complying with the code of practice. It authorises for that purpose use of the powers in sections 35A and 35B of the 1986 Act (discussed in relation to section 28P). Where SLAB finds a solicitor or firm has not been complying with the code of practice it may set a deadline for them to resolve the defect in their practice. If SLAB is still not satisfied as to compliance it may remove the solicitor or firm from the register and the solicitor will be required to allocate any live children’s legal assistance work to another solicitor who is registered. SLAB must give reasons for its decision to remove a solicitor or firm from the register and that decision is subject to appeal to the Court of Session, on points of fact or law, within 21 days.
Section 28R – Further provision as to removal of name from register
313.This section deals with situations in which a solicitor included on the register becomes connected with a firm which is not registered and, as a result, he or she is no longer connected with any registered firm. In that event, subsection (2) obliges SLAB to remove the solicitor’s name from the register.
314.Subsection (3) provides for section 25D(6) to (9) of the 1986 Act to apply where a solicitor’s name is removed from the register under section 28R(2) as it applies in relation to the removal of a solicitor’s name from the register for criminal legal assistance. That means the solicitor will be required to transfer any children’s legal assistance work to a solicitor who is registered. SLAB must give the solicitor reasons for its decision to remove his or her name from the register and the solicitor will have 21 days from the date of receiving SLAB’s reasons to appeal the decision to the Court of Session.
Section 28S – Publication of register etc.
315.This section applies section 25F of the 1986 Act to the register to be established under section 28M as it applies in relation to the register for criminal legal assistance established under section 25A of the 1986 Act. Specifically, it requires SLAB to make available for inspection, without charge: the register of those solicitors and firms entitled to provide children’s legal assistance; its decisions refusing applications for entry on the register; and its decisions to remove the names of solicitors and firms from the register. Furthermore, it requires SLAB to send a copy of the register to the Secretary of the Law Society of Scotland on an annual basis and to notify the Law Society of any changes made to the register during the course of a year.
Section 192 – Power to make regulations about contracts for provision of children’s legal aid
316.This section provides for a new section 33B to be inserted into the 1986 Act to enable SLAB to enter into contracts with solicitors to provide children's legal assistance, meaning State funded legal advice and representation in relation to Children’s Hearings and court proceedings arising from Children’s Hearings. The new section confers a power by regulations, subject to the negative procedure, on the Scottish Ministers to allow the Board to enter into such contracts, and make detailed provision about the terms on which the Board may contract with solicitors.