Applications for legal aid: FOI release

Information requested

1. The number of applications to the Scottish Ministers to make payment from the legal aid fund in terms of section 4(c) of the Legal Aid (Scotland) Act 1986

2. Any policy documents, manuals, and decision-making documents in respect of applications in terms of that section.

3. Copies of any ministerial submissions or comparable document in respect of such applications.

Response

On 12 July 2022 clarification on your request was sought.

In “1.” you do not specify a period of time to which this request applies, and the provision to which you refer to has been in force since 1987. In order to proceed with the request, it would be helpful to know if you require information on:

• Numbers of applications for a particular period of time,
• Numbers of applications for determination requests in respect of certain subject matters

On 12 July 2022 you confirmed you sought “information for the five most recent years for which complete information is available”.

Your request relates to the exercise of the power to cause payments to be made from the Scottish Legal Aid Fund (“the Fund”) under s.4(2)(c) of the Legal Aid (Scotland) Act 1986 (“the 1986 Act”) – “There shall be paid out of the Fund… such other payments as the [Scottish Ministers] may determine.” Persons who do not qualify for publicly funded legal assistance under the 1986 Act and the regulations made under that Act may apply directly to the Scottish Ministers requesting that they make such a determination. Further to your response in respect of a request for clarification, this response relates to such applications to the Scottish Ministers from 29 June 2017.

Question 1
Since June 2017 there have been thirty two applications received requesting that the Scottish Ministers determine that payment be made from the Fund, under section 4(2)(c) of the 1986 Act. Applications have covered different types of cases on matters of both criminal and civil law, as well as applications to enable payment to support grant funding functions. Copies of determinations where payment has been made are attached.

Question 2
This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. When asked to make a determination for payment under section 4(2)(c) of the 1986 Act for the purpose of funding legal assistance, the Scottish Ministers assess each case on its merits and consider whether it is reasonable in the particular circumstances. Ministers have discretion as to whether to make such payments, provided that discretion is used in a way that is consistent with the terms of the 1986 Act and in accordance with general principles of administrative law.

The Scottish Government previously set out a description of its approach to applications under section 4(2)(c) of the 1986 Act in a submission to the Public Petitions Committee of the Scottish Parliament; the submission is accessible at this link:
Scottish Government submission 261017(parliament.scot)

Ministers’ exercise of the power under section 4(2)(c) is to be exercised in a way consistent with the operation of the existing rules made by the 1986 Act and any regulations made under that Act. Accordingly, when an application for a determination is made for a type of legal assistance for which provision is made in regulations, but for which the particular applicant does not qualify, Ministers will consider carefully whether making such a payment would interfere with those regulations, and in that case whether doing so is appropriate.

Question 3
When considering any request for a determination, a submission is provided to the Scottish Ministers, in which policy advice is interlinked with the legal advice and the personal characteristics of the applicant. While our aim is to provide information whenever possible, in this instance, we are unable to provide all of the information you have requested because exemptions under sections 36 (confidentiality) and section 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained in the Annex to this letter. While the legal and policy advice in respect of the particular applications received is subject to the above exemptions, attached is provided a draft Ministerial Submission template by way of an example.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.