What is advice and assistance?

Advice and assistance is oral or written advice on a matter of Scots law provided to your client by you.  It does not include taking steps in connection with instituting, conducting or defending proceedings unless assistance by way of representation (ABWOR) is available.  Advice and assistance can be given before and after a children’s hearing. In certain circumstances, ABWOR is available for children’s proceedings.

The definition of advice and assistance is set out in section 6 of the Legal Aid (Scotland) Act 1986:

““Advice and assistance” means any of the following

(a) oral or written advice provided to a person by a solicitor (or, where appropriate, by counsel)

(i) on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice;

(ii) as to any steps which that person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings, making an agreement or other transaction, making a will or other instrument, obtaining further legal or other advice and assistance, or otherwise) having regard to the application of Scots law to those circumstances;

(b) assistance provided to a person by a solicitor (or, where appropriate, by counsel) in taking any steps mentioned in paragraph (a)(ii) above, by taking such steps on his behalf or by assisting him in so taking them.”

You cannot give advice and assistance on a matter that does not involve the application of Scots law.

You cannot give advice on a matter relating to:

• Foreign law, including matters of English or Northern Irish law.
• Work in connection with applications to, and proceedings before, the European Court of Human Rights.

You cannot competently grant advice and assistance on a matter of foreign law (including English or Northern Irish law).  You may, however, offer the advice that Scots law affords no remedy in the circumstances and the matter must be pursued in another jurisdiction.  That advice would extend to putting your client in touch with a solicitor in the foreign jurisdiction.  We would be unlikely to grant an increase in authorised expenditure to do this.

“Representation” means advice and assistance provided to your client in taking on their behalf any step in instituting, conducting or defending any proceedings.  Representation  includes a number of steps short of actual appearance in court or before children’s hearing and can only be given where ABWOR is available.