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Part VIS Miscellaneous

Solicitors and counselS

31 Solicitors and counsel.S

(1)[F1Subject to subsection (1A) below,] a person to whom legal aid or advice and assistance is made available may select—

(a)the solicitor to advise or act for him; and

(b)if the case requires counsel, [F2or a solicitor holding rights of audience by virtue of section 25A (rights of audience) of the Solicitor (Scotland) Act 1980, his counsel or such a solicitor],

and he shall be entitled to make the selection himself.

[F3(1A)Subsection (1) above is subject to—

(a)section 25A(3) of this Act;

[F4(aa)section 28M(3),]

(b)section 30(2) of this Act;

(c)regulations made under section 28A(6) of this Act;

(d) regulations made under section 33A(4) of this Act; F5 . . .

[F6(da)regulations made under section 33B(4),]

(e)regulations made under subsection (9) below [F7; and

(f)[F8sections 92(2), (2B)(b), (2D) and (2E) [F9, 150A(4)(b), (6) and (7)] and] 288D of the Criminal Procedure (Scotland) Act 1995 (c.46)]

[F10and does not apply where the person is being provided with criminal legal assistance [F11or children's legal assistance] by a solicitor employed by the Board under section 26 and 27 of this Act]]

(2)Nothing in subsection (1) above shall prejudice any right of a solicitor or advocate to refuse or give up a case or to entrust it to another solicitor or advocate.

(3)The [F12Board] may decide to exclude any advocate or solicitor either from being selected under subsection (1) above, or from giving advice and assistance to or from acting for a person to whom legal aid is made available on the ground that there is good reason for excluding him arising out of—

(a)his conduct when acting or selected to act for persons to whom legal aid or advice and assistance is made available;

(b)his professional conduct generally;

(c)in the case of a member of a firm of solicitors or a director of an incorporated practice, such conduct on the part of any person who is for the time being a member of the firm or a director of the practice.

[F13(d)in the case of a solicitor investor in a licensed legal services provider, such conduct on the part of any person who is for the time being a solicitor investor in it.]

(4)The [F14Board] may decide to exclude a solicitor or advocate under subsection (3) above in respect of any specified period or without limit of time.

(5)A solicitor or advocate who is aggrieved by a decision of the [F15Board] under subsection (3) above may appeal against his exclusion or the period of such exclusion to the Court of Session; and the court in determining such an appeal may make such order as it thinks fit.

F16(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Except in so far as expressly provided under this Act, the fact that the services of counsel or a solicitor are given by way of legal aid or advice and assistance shall not affect the relationship between or the respective rights in that connection of counsel, solicitor and client.

(8)The Board may arrange that, in such circumstances as it may specify, a solicitor shall be available for the purposes of providing legal aid or advice and assistance.

(9)Where a solicitor is available as is mentioned in subsection (8) above, the Secretary of State may, by regulations made under this section, provide that—

(a)subsection (1) above shall not apply; and

(b)[F17Subject to subsection (11) below,] legal aid or, as the case may be, advice and assistance shall be provided only by the solicitor so made available.

F18(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F19(11)Nothing in subsection (9)(b) above shall enable the Secretary of State to make regulations authorising the granting of legal aid only to solicitors holding rights of audience under section 25A (rights of audience) of the Solicitors (Scotland) Act 1980.]

Textual Amendments

F1Words in s. 31(1) substituted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(8)(a); S.I. 1997/2323, art. 6(2)

F2Words in s. 31(1) substituted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 36(13); S.I. 1991/2151, art. 3, Sch.

F7S. 31(1A)(f) and preceding word inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 2(3)(b); S.S.I. 2002/443, art. 3 (with transitional provisions in art. 4(1)(2))

F10Words in s. 31(1A) added (6.7.2001) by 2001 asp 7, ss. 9(8), 15(3)

F17Words in s. 31(9)(b) inserted (30.9.1991) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 36(14); S.I. 1991/2151, art. 3, Sch.

F19S. 31(11) inserted (30.9.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2) s. 74(1), Sch. 8 para. 36(15); S.I. 1991/2151, art. 3, Sch.

Modifications etc. (not altering text)

C1S. 31(1) excluded (6.2.2002) by S.S.I. 2001/464, reg. 2(a)

32 Restriction on payment and employment of solicitor or counsel.S

Where legal aid is available to a person in connection with any proceedings (whether legal aid is available in connection with all or only part of the proceedings)—

(a)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 . . . F20; and

(b)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.

Textual Amendments

33 Fees and outlays of solicitors and counsel.S

(1)[F21Subject to subsections (3A) and (3B) below,] any solicitor or counsel who acts for any person by providing legal aid or advice and assistance under this Act shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by him in so acting.

[F22(1A)A registered organisation shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by it in respect of the advisers it approves providing advice and assistance under this Act.]

(2)The Secretary of State may, by regulations made under this section, make such provision as seems to him appropriate in respect of the fees and outlays of solicitors and counsel [F23and, in respect of advice and assistance as mentioned in paragraph (b) of this subsection, advisers]—

(a)acting in any proceedings for a person to whom legal aid has been made available; or

(b)providing advice and assistance in accordance with Part II of this Act.

(3)Without prejudice to the generality of subsection (2) above, regulations made under this section may—

(a)prescribe the work in respect of which fees may be charged;

(b)prescribe rates or scales of payment of fees and outlays allowable and the conditions under which such fees and outlays may be allowed;

(c)provide for the assessment and taxation of fees and outlays, and for the review of any such assessmen or taxation, either by the Secretary of State or by any other person;

(d)prescribe general principles to be applied in connection with any such assessment, taxation or review;

(e)prescribe forms to be used for the purposes of any regulations made under this section; and

(f)make different provision for different cases.

[F24(3A)The Secretary of State may by regulations under this section prescribe fixed payments to be made to a solicitor in respect of—

(a)his professional services in providing criminal legal assistance; and

(b)such outlays as may be so prescribed.

[F25(3AA)Regulations amending or replacing regulations made under subsection (3A) above may, for the purpose specified in subsection (3AB) below, make provision as to fixed payments in relation to criminal legal assistance provided in relation to proceedings commenced before and continuing as at the date of the making or coming into force of the amendment or replacement of the regulations.

(3AB)The purpose referred to in subsection (3AA) above is that of ensuring that persons to whom fixed payment criminal legal assistance is being provided are not, by reason of the amount of the fixed payments payable in respect of that criminal legal assistance under the regulations as they have effect immediately before the coming into force of the amendment or replacement of the regulations, deprived of the right to a fair trial.

(3AC)In subsection (3AB) above “fixed payment criminal legal assistance” and “fixed payments” have respectively the meanings given by subsection (3E) below;]

(3B)A solicitor who provides any criminal legal assistance in respect of which a fixed payment has been prescribed in regulations made under subsection (3A) above shall not be entitled to any other payment out of the Fund in respect of the professional services and outlays mentioned in that subsection, but shall be entitled to reimbursement of any other outlays which he has properly incurred.]

[F26(3C)The Scottish Ministers may, however, for the purpose of enabling the Board to ensure that a person to whom fixed payment criminal legal assistance is provided is not, for the reason specified in subsection (3D) below, deprived of the right to a fair trial, by regulations under this subsection, provide that—

(a)in such circumstances; and

(b)under such conditions,

as may be prescribed by the regulations, a solicitor who provides such criminal legal assistance shall, instead of receiving fixed payments, be paid out of the Fund in accordance with regulations made under subsections (2) and (3) above.

(3D)The reason referred to in subsection (3C) above is the amount of the fixed payments payable for the criminal legal assistance provided.

(3E)In subsection (3C) above—

(3F)Regulations made under subsection (3C) above shall provide that it is for the Board to determine whether any prescribed circumstances exist and whether any prescribed conditions are met.

(3G)Circumstances may be prescribed under subsection (3C)(a) above by reference to such factors as the Scottish Ministers think fit.

(3H)The conditions which may be prescribed under subsection (3C)(b) above include those which stipulate that a solicitor providing criminal legal assistance—

(a)applies to the Board to exercise its power of determination under subsection (3F) above;

(b)does so in such manner and form as the Board may specify and at as early a stage in the provision of the criminal legal assistance as is reasonably practicable; and

(c)keeps proper records of all professional services provided by way of and outlays incurred in the provision of that criminal legal assistance, whether before or after the exercise of that power of determination.

(3J)Regulations may be made under subsection (3C) above so as to relate to criminal legal assistance provided in relation to proceedings commenced before and continuing as at the date of coming into force of section 7 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), and regulations so relating may disapply any condition which would otherwise apply under subsection (3C)(b) above.

(3K)The Board shall establish a procedure under which any person—

(a)whose solicitor’s application under subsection (3H) above has been refused; or

(b)on whose solicitor’s application under that subsection the Board has made a determination which is such that the solicitor will not be paid out of the Fund in accordance with regulations made under subsections (2) and (3) above,

may apply to the Board for review of that refusal or determination.]

(4)In subsection (1) above the reference to acting for a person includes, in relation to a solicitor, a reference to acting for such a person on the instructions of another solicitor.

(5)Where a person is in receipt of legal aid in connection with any proceedings, any expenses incurred in connection with the proceedings which would, if he were not in receipt of legal aid, be paid, in the first instance, by or on behalf of the solicitor acting for him, shall be so paid.

Textual Amendments

F21Words in s. 33(1) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(9); S.I. 1997/2323, art. 6(2)

F24S. 33(3A)(3B) inserted (1.10.1997) by 1997 c. 48, s. 51; S.I. 1997/2323, art. 6, Sch. 3

F25S. 33(3AA)-(3AC) inserted (6.7.2001) by 2001 asp 7, ss. 8, 15(3)

F26S. 33(3C)-(3K) inserted (6.7.2001) by 2001 asp 7, ss. 7, 15(3)