Question reference: S6W-05971
- Asked by: Oliver Mundell, MSP for Dumfriesshire, Scottish Conservative and Unionist Party
- Date lodged: 27 January 2022
-
Current status: Answered by Ash Regan on 9 February 2022
Question
To ask the Scottish Government what protections are in place to prevent legal aid being used to bring forward spurious cases in (a) general and (b) relation to family law.
Answer
Legal aid applications are prepared by an applicant’s solicitor, who provides all the details of the case to the Scottish Legal Aid Board (SLAB). Solicitors have professional duties not only to their client, but to SLAB and to the court; therefore it would not be professionally appropriate for a solicitor to submit an application for legal aid if they were of the view that a client’s case was “spurious”.
Legal aid is granted only if the applicant meets the strict eligibility criteria set out in legislation, which apply to all civil cases, including family law matters. This includes the merits of a case. Applicants need to demonstrate that they have a sound legal basis for their case, and that it is reasonable for legal aid to be made available. When looking at the reasonableness test, The Scottish Legal Aid Board (SLAB) considers a range of factors including whether the application is premature and whether there are reasonable prospects of success. If the criteria are not met then legal aid will be refused.
Opponents will generally be notified when an application for legal aid is submitted and have the opportunity to make representations to SLAB prior to legal aid being granted. Opponents can also provide any additional information which may affect the merits of the case during its lifetime after legal aid has been granted and does not require legal representation.