Commentary on Sections Part 4 – Legal Aid Section 74: Solicitors employed by the Scottish Legal Aid Board
194.Subsection (1) of section 74 amends section 4 of the 1986 Act to allow for payments to be made out of the Legal Aid Fund in respect of expenses incurred by the Board in connection with the employment by the Board of solicitors who provide advice and assistance in relation to civil matters, civil legal aid or who work with advice organisations and provide the services as are mentioned in section 26(2). Section 4 of the 1986 Act already provides the Board with the ability to pay such expenses in respect of solicitors employed to provide advice on criminal matters.
195.Subsection (2) of section 74 amends section 26 of the 1986 Act by removing the reference to “local” in the definition of organisations with which the Board may employ solicitors to work in partnership. It also amends the reference to the organisation’s “function of giving advice” so that this need only be part of the organisation’s role and not its sole or main function.
196.Subsection (3) of section 74 amends section 27 of the 1986 Act to clarify the powers of the Board in relation to the employment of staff and the setting of their terms and conditions of employment. Paragraph 8 of Schedule 1 of the 1986 Act sets out these powers which apply not only to the administrative staff employed by the Board but also, by virtue of section 28A(4), to solicitors employed by the Board to provide criminal legal assistance. Subsection (3) of section 74 replicates section 28A(4) in section 27 of the 1986 Act so that the Board’s powers set out in paragraph 8 of Schedule 1 will also apply to solicitors employed to provide assistance on civil matters.
197.Subsection (3) of section 74 also repeals section 27(2) and (3) of the 1986 Act. Section 27(2) disapplies section 32(a) which prohibits payment from another source where payment has been made from the Legal Aid Fund and section 27(3) prevents solicitors who are employed by the Board to provide assistance on civil matters from being paid from the Legal Aid Fund altogether. Repealing both of these subsections allows the Board to pay solicitors employed by them out of the Legal Aid Fund and not from any other source.