The Scottish Ministers give the Scottish Legal Aid Board the following Direction in exercise of the powers conferred by section 14(1C) and (1D) of the Legal Aid (Scotland) Act 1986(a).
(2) In considering an applicant’s ability to bring or defend the proceedings effectively without public funding for representation, the Board is to take into account the applicant’s ability (with the assistance of any accompanying person)—
(a) to consider and challenge any document or information before the court; and
(b) to present his or her views and arguments to the court in an effective manner.
(3) The Board shall be satisfied that the applicant would be unable to bring or defend the proceedings effectively without public funding for representation if it considers the case to be exceptional.
(4) A case is “exceptional” for the purpose of sub-paragraph (3) if the degree of exceptionality is the same as, or is approximately the same as, in the facts found in those cases in which the Court of Session, the Supreme Court or the European Court of Human Rights has indicated that the absence of public funding for representation violates one or more of the Convention Rights (as defined in the Human Rights Act 1998(b)).
St Andrew’s House,
26th October 2010