Citation and commencement

1.  These Regulations may be cited as the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2024 and come into force on 12 October 2024.

Application

2.—(1) Regulation 3 applies only in relation to fees for work done or outlays incurred on or after 12 October 2024.

(2) For the purposes of paragraph (1), where work for a fee prescribed in regulation 3 is conducted over more than one date, the work is deemed to have been done on the day on which the work comes to an end.

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

3.—(1) Schedule 2 (fees of counsel) of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989( 2) is amended as follows.

(2) In the notes on the operation of schedule 2—

(a) for paragraph 4A, substitute—

“Where in respect of a bill of advocation in which a hearing is set down for half a day or longer the court orders counsel to make written submissions, counsel is to be paid for drafting those submissions a fee in the range specified in paragraph 3(b) of the applicable Chapter of Part 2 of the Table of Fees. ”,

(b) in paragraph 6, omit—

(i) “paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 1,”,

(ii) “, or paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 3,”,

(c) in paragraph 8—

(i) after “under”, insert “paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 1,”,

(ii) after “2(a),” insert “(d),”,

(iii) after “(e)”, insert “4(b),”,

(iv) after “6(d)”, insert “, (e)”,

(v) for “Part II”, substitute “Part 2, or paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 3,”.

(3) In Part 2 (fees of counsel in appeal proceedings) of the table of fees—

(a) in Chapter 1 (junior counsel)—

(i) in paragraph 2 (appeal by way of Bill of Suspension, Bill of Advocation or Stated Case), after sub-paragraph (c), insert—

(ii) for paragraph 4 (appeal hearing before a Full Bench) substitute—

(iii) in paragraph 6 (appeals conduct other), after sub-paragraph (d), insert—

(b) In Chapter 2 (senior counsel)—

(i) in paragraph 2 (appeal by way of Bill of Suspension, Bill of Advocation or Stated Case), after sub-paragraph (c), insert—

(ii) for paragraph 4 (appeal hearing before a Full Bench) substitute—

(iii) in paragraph 6 (appeals conduct other), after sub-paragraph (d), insert—

Amendment of the Advice and Assistance (Scotland) Regulations 1996

4.—(1) The Advice and Assistance (Scotland) Regulations 1996( 3) are amended as follows.

(2) In regulation 2(1) (interpretation)—

(a) after the definition of “employment tribunal”, insert—

““ Grenfell Tower payment ” means any payment made to a person by way of compensation, damages or legal expenses in connection with the Grenfell Tower fire of 14 June 2017, including under any settlement arrived at to prevent or bring legal proceedings to an end,

“ human trafficking or exploitation victim payment ” means any payment made by way of support or assistance provided under section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015( 4) or under regulations made under section 10 of that Act, or any payment made by way of support provided under a Modern Slavery Victim Care Contract( 5) , ”,

(b) after the definition of “income-related employment and support allowance”, insert—

““ Infected Blood Compensation Scheme ” means the scheme made by the Secretary of State or the Minister for the Cabinet Office in exercise of powers conferred by section 49 of the Victims and Prisoners Act 2024( 6) , ”,

(c) after the definition of “legal representative”, insert—

““ miscarriage of justice payment ” means any payment made by the Secretary of State, the Scottish Ministers or the Department of Justice (Northern Ireland) for the purpose of compensating a person for a miscarriage of justice, ”.

(3) In regulation 16(2) (payment of fees and outlays from property recovered or preserved)—

(a) in sub-paragraph (a), after head (xix)( 7), insert—

“(xx) by way of any human trafficking or exploitation victim payment,

(xxi) by way of any miscarriage of justice payment,

(xxii) by way of any Grenfell Tower payment,

(xxiii) by way of any payment made under the Infected Blood Compensation Scheme. ”,

(b) in sub-paragraph (c), for “invalid care allowance” substitute “carer’s allowance”.

(4) In schedule 2 after paragraph 5(bg) (assessment of disposable capital and income), insert—

“(bh) there shall be left out of account any human trafficking or exploitation victim payment,

(bi) there shall be left out of account any miscarriage of justice payment,

(bj) there shall be left out of account any Grenfell Tower payment,

(bk) there shall be left out of account any payment made under the Infected Blood Compensation Scheme. ”.

Amendment of the Civil Legal Aid (Scotland) Regulations 2002

5.—(1) The Civil Legal Aid (Scotland) Regulations 2002( 8) are amended as follows.

(2) In regulation 2(1) (interpretation)—

(a) after the definition of “Fund”, insert—

““ Grenfell Tower payment ” means any payment made to a person by way of compensation, damages or legal expenses in connection with the Grenfell Tower fire of 14 June 2017, including under any settlement arrived at to prevent or bring legal proceedings to an end,

“ human trafficking or exploitation victim payment ” means any payment by way of support or assistance provided under section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015 or under regulations made under section 10 of that Act, or any payment made by way of support provided under a Modern Slavery Victim Care Contract, ”,

(b) after the definition of “income-related employment and support allowance”, insert—

““ Infected Blood Compensation Scheme ” means the scheme made by the Secretary of State or the Minister for the Cabinet Office in exercise of powers conferred by section 49 of the Victims and Prisoners Act 2024, ”,

(c) after the definition of “maximum contribution”, insert—

““ miscarriage of justice payment ” means any payment made by the Secretary of State, the Scottish Ministers or the Department of Justice (Northern Ireland) for the purpose of compensating a person for a miscarriage of justice, ”.

(3) In regulation 33(a) (payments out of property recovered or preserved: exceptions)—

(a) after head (iii), insert—

“(iiia) by way of carer’s allowance under section 70 of the 1992 Act, ”,

(b) after head (xxvii)( 9), insert—

“(xxviii) by way of any human trafficking or exploitation victim payment,

(xxix) by way of any miscarriage of justice payment,

(xxx) by way of any Grenfell Tower payment,

(xxxi) by way of any payment made under the Infected Blood Compensation Scheme. ”.

(4) In schedule 2, paragraph 7 (disregards in computing disposable income)—

(a) after sub-paragraph (a), insert—

“(ab) carer’s allowance paid under section 70 of the 1992 Act, ”,

(b) after sub-paragraph (q)( 10), insert—

“(r) any human trafficking or exploitation victim payment,

(s) any miscarriage of justice payment,

(t) any Grenfell Tower payment,

(u) any payment made under the Infected Blood Compensation Scheme. ”.

(5) In schedule 3, paragraph 8 (disregards in computing disposable capital)—

(a) in sub-paragraph (l)( 11), after “any”, insert “carer’s allowance paid under section 70 of the 1992 Act or”,

(b) after sub-paragraph (m), insert—

“(n) any human trafficking or exploitation victim payment,

(o) any miscarriage of justice payment,

(p) any Grenfell Tower payment,

(q) any payment made under the Infected Blood Compensation Scheme. ”.

Amendment of the Children’s Legal Assistance (Scotland) Regulations 2013

6.—(1) The Children’s Legal Assistance (Scotland) Regulations 2013( 12) are amended as follows.

(2) In regulation 2(1) (interpretation)—

(a) after the definition of “children’s hearing”, insert—

““ Grenfell Tower payment ” means any payment made to a person by way of compensation, damages or legal expenses in connection with the Grenfell Tower fire of 14 June 2017, including under any settlement arrived at to prevent or bring legal proceedings to an end,

“ human trafficking or exploitation victim payment ” means any payment by way of support or assistance provided under section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015 or under regulations made under section 10 of that Act, or any payment made by way of support provided under a Modern Slavery Victim Care Contract,

“ Infected Blood Compensation Scheme ” means the scheme made by the Secretary of State or the Minister for the Cabinet Office in exercise of powers conferred by section 49 of the Victims and Prisoners Act 2024, ”,

(b) after the definition of “interested person”, insert—

““ miscarriage of justice payment ” means any payment made by the Secretary of State, the Scottish Ministers or the Department of Justice (Northern Ireland) for the purpose of compensating a person for a miscarriage of justice, ”.

(3) In schedule 1, paragraph 5 (disregards in assessing disposable income for the purposes of children’s legal aid)—

(a) in sub-paragraph (r)( 13), after “any”, insert “carer’s allowance paid under section 70 of the 1992 Act or”,

(b) after sub-paragraph (s), insert—

“(t) any human trafficking or exploitation victim payment,

(u) any miscarriage of justice payment,

(v) any Grenfell Tower payment,

(w) any payment made under the Infected Blood Compensation Scheme. ”.

(4) In schedule 2, paragraph 8 (disregards in assessing disposable capital for the purposes of children’s legal aid)—

(a) in sub-paragraph (l)( 14), after “any” insert “carer’s allowance paid under section 70 of the 1992 Act or”,

(b) after sub-paragraph (m), insert—

“(n) any human trafficking or exploitation victim payment,

(o) any miscarriage of justice payment,

(p) any Grenfell Tower payment,

(q) any payment made under the Infected Blood Compensation Scheme. ”.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend existing regulations made under the Legal Aid (Scotland) Act 1986.

Regulation 2 makes provision as to when the amendments made by regulation 3 of these Regulations apply.

Regulation 3 amends the table of fees in Part 2 of schedule 2 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 to make provision for counsel fees for making written submissions where so ordered by the court. Regulation 3 also amends the notes on the operation of that schedule - paragraph 4A is amended to maintain existing fee provision for written submissions where required in hearings related to bills of advocation, and notes setting out the factors to be shown by counsel when seeking higher fees for written work—

• are moved from paragraph 6 to paragraph 8 for the purposes of consolidation, and

• are added to paragraph 8 regarding the new provisions in the fee tables.

Regulations 4 to 6 amend existing legal aid regulations so any payments made to a person by way of (a) a human trafficking or exploitation victim payment, (b) a miscarriage of justice payment, (c) a Grenfell Tower payment, and (d) an Infected Blood Compensation Scheme payment (“the payments”) are to be disregarded by the Scottish Legal Aid Board in the assessment and computation of that person’s disposable capital and income.

Regulation 4 amends the Advice and Assistance (Scotland) Regulations 1996 to disregard the payments for the purposes of advice and assistance. It also excludes the payments, and also any carer’s allowance payments, from bearing fees and outlays when forming part of any recovered or preserved property in proceedings.

Regulation 5 amends the Civil Legal Aid (Scotland) Regulations 2002 to make equivalent provision for the purposes of civil legal aid.

Regulation 6 amends the Children’s Legal Assistance (Scotland) Regulations 2013 to disregard the payments for the purposes of children’s legal aid.

A Business and Regulatory Impact Assessment has been prepared for these Regulations and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Government Justice Directorate, St Andrews House, Edinburgh EH1 3DG.