You cannot give advice and assistance on a matter that does not involve the application of Scots law. For example it would not cover:
Equally, it has to be Scots law and you cannot give advice on a matter relating to:
You cannot competently grant advice and assistance on a matter of foreign law (including English or Northern Irish law).
You may, however, give a diagnostic interview to advise on the application of Scots law to a particular situation.
That advice would extend to putting your client in touch with a solicitor in the foreign jurisdiction.
We would be unlikely to agree to a grant of standard advice and assistance to do this.
You can give advice and assistance on the Scots law aspects of matters of UK law, such as immigration, employment or social security. However, you can do so only where any remedy lies within the jurisdiction of the Scottish legal system (for example, where an appeal lies from a tribunal to the Court of Session).
This guidance concerns advice and assistance only. The guidance for ABWOR shows that where it is available, similar provisions apply. Where we make reference to courts and tribunals to help you decide what falls to be treated as Scot’s law you should remember the restrictions that apply to work that can be carried out under advice and assistance in relation to courts or tribunals (as opposed to ABWOR where it is available).
You can give advice and assistance on the areas of Scots law which come from UK law, such as immigration, employment or social security. However you can only do this where any remedy or enforcement would lie within the jurisdiction of the Scottish legal system (for example, where an appeal lies from a tribunal to the Court of Session).
We consider the Scottish legal system includes the limited circumstances where the only first-instance or single-tier tribunal or court with jurisdiction for those who ordinarily and actually live in Scotland is situated in England and Wales (for example, asylum support claims and appeals).
While living in Scotland is not directly an express requirement of the Scottish legal aid legislation, clients who live in Scotland are most likely to be able to obtain assistance under Scottish advice and assistance. This is because those living in Scotland are most likely to be subject to Scots law.
A client who does not live in Scotland at the time of the application for advice and assistance may still be eligible but they will need to demonstrate that the subject matter is a matter of Scots law. As explained above that includes matters of UK law which would, in the normal course of events, be enforced in the Scottish legal system.
Scot’s law has to be the law that applies to the client. If a client asks for advice on a matter of UK law, which applies to the client as a consequence of the client being subject to the law of another UK jurisdiction, the client is not eligible for advice and assistance under the Legal Aid (Scotland) Act 1986. If the client has a past link with Scotland, or plans to move to Scotland, this will not be sufficient if advice is to be given on a matter which does not otherwise qualify as Scots law.
The critical thing you need to decide is whether on a proper interpretation of the situation, the client is seeking advice on Scot’s law as it applies to them at the time of application. If the law of Scotland does not apply to them, then it is not a matter of Scots law.
A request to provide advice to someone who is not subject to Scot’s law in relation to that matter cannot be the subject of advice and assistance.
Where advice and assistance is provided to a client on a matter of Scots law that comes from UK law, and the client either lives outside Scotland or moves from Scotland during the course of the advice, subject to the following remarks, you can continue to provide advice and assistance to the conclusion of the advice on the original matter:
However, in matters of UK law, you should not undertake work for a client not living in Scotland in connection with a new stage in the case, such as an appeal, unless this new part of the case is also, or continues to be, properly considered a matter of Scots law.
Eligibility for advice and assistance is assessed by the solicitor. A grant which a solicitor has purported to make in relation to a matter that is not a matter of Scots law will be invalid and no payment may be made from the Fund for such work. If it is clear to us that the grant is not valid at the point where you notify us of it, we will not register it. It may not be obvious to us that a grant is invalid at the registration stage. The registration of a grant is not acceptance that the grant is valid. The validity of a grant may be considered at any point up to the point of payment of any account, and if a grant is invalid no payment will be made.
In any situation where it is not obvious why a matter is considered to be a matter of Scot’s law you must provide full information to explain this in the notification of the application or in a separate online message.
If you have any questions please contact Wendy Dalgleish at DalgleishWe@slab.org.uk