Regulations replace temporary Covid-19 provisions from 1 October 2022

This update is to inform you of changes as a result of the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 coming into force on 1 October 2022.

These regulations amend regulations made under the Legal Aid (Scotland) Act 1986 (“the Act”).

They remove the provisions, as described below, that were inserted into legal aid and advice and assistance regulations on a temporary basis during the Covid-19 emergency period – which for the purposes of the provisions amended by these Regulations ends on 30 September 2022, the date on which Part 9 of schedule 4 of the Coronavirus (Scotland) Act 2020 expires.

These regulations replace the temporary provisions with permanent ones with equivalent effect.

Temporary provisions removed

• Interim Payments

Regulation 2 amends paragraphs 24 and 25 of the Notes on the operation of schedule 6, chapter 2 (sheriff court civil fees (defended)) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989, to remove the provisions allowing payments during the emergency period of the amount of the fees which would be payable if the work in a case had been commenced but not completed in its entirety.

• Counsels’ Preparation Fees

Regulation 3 amends paragraphs 13(d) and 22 of the Notes on the operation of schedule 2 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, to remove the exception that allowed a preparation fee to be payable prior to the conclusion of the case.

• Referring appointed solicitor ABWOR cases to the duty solicitor

Regulation 6 amends the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 to remove the provision made for assistance by way of representation in relation to restrictions or requirements under the Coronavirus Act 2020, following the expiry of the relevant provisions in that Act.

Replacement permanent provisions

These temporary changes put in place during the Covid-19 emergency period have now been replaced with the following permanent provisions with equivalent effect:

• Interim Payments

Regulation 4 amends the Advice and Assistance (Scotland) Regulations 1996 to provide that when assessing a claim for interim payment under the Act we need not take into account any property which may be recovered in the course of proceedings for the client to whom the advice and assistance has been provided and to make provision for the recovery of interim sums paid out. Temporary interim payment provisions in the Act expire on 30 September 2022, with replacement provisions with similar overall effect proposed for insertion into the Act by Scottish Parliament bill (see the Coronavirus (Recovery and Reform) (Scotland) Bill). Relevant legal aid guidance

•  Removal of Duty Half Fee

Regulation 5 amends regulation 4(5C) of the Fixed Payment Regulations Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, to remove the reference to “during the emergency period” in order that the full core fee is payable in a case where a duty solicitor makes an initial plea of not guilty on the instruction of another solicitor who has (or has had) a solicitor and client relationship with the accused, and that solicitor later tenders a plea of guilty prior to trial. Relevant legal aid guidance

• Referring appointed solicitor ABWOR cases to the duty solicitor

Regulation 7(a) to (c) amend the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (“the 2011 Regulations”) to provide that duty solicitors may represent persons prosecuted under summary procedure when authorised to do so by that person’s appointed solicitor or a solicitor connected with the appointed solicitor’s firm. Relevant legal aid guidance

More information

Please contact Kingsley Thomas, Head of Criminal Legal Assistance E: thomaski@slab.org.uk