Commentary on Sections Part 19 – Legal Aid and Advice 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.