But there are, she added, already problems with access to justice, particularly around civil legal aid.
“If, say, somebody, a survivor of domestic abuse, wants to take some kind of civil action, say, like an interdict against the perpetrator of the abuse or whatever, while they would be perfectly eligible to get legal aid for that, they can’t find a legal aid solicitor that will take it forward for them.
“And the area that often gets forgotten about is guardianship. So let’s say, you or your partner slipped on the ice and hit your head and lost your capacity as a result of a head injury, and maybe you have a power of attorney so that you can make decisions for that person.
“But sometimes the power of attorney doesn’t really go far enough and you need to apply for guardianship.
“Well, you will be automatically eligible for legal aid because there are no financial constraints on your eligibility for legal aid for guardianship, but you can’t find a solicitor that will take it forward for you.
“That could affect any one of us.
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When the Scottish Legal Aid Board (SLAB) published their annual report earlier this month, it showed a 12% increase in the cost of legal aid on the previous year.
Colin Lancaster, the body’s Chief Executive, said this was “a significant investment in legal aid and a substantial financial boost for the committed firms up and down the country who deliver this vital service.”
Ms Thom told The Herald that was not quite the full picture.
She said SLAB has also conceded that this extra cost was due to fee increases and increased demand as a result of the Covid backlog.
“My concern is that it is a demand-led budget and the need has increased.
“So just because the amount invested is increasing doesn’t mean they’re meeting the need. That’s our problem, they’re not meeting the need at all. And as a result of that solicitors are leaving the practice.”
“What they’re saying is, ‘we’re not making enough money from legal aid to cover our outlays, to cover our expenses. We can’t run an office on the money that we’re earning from Legal Aid.”
“A lot of criminal lawyers just do criminal legal aid, and the civil practitioners will do a mix, but they’re just coming to the point where this is just not sustainable.”
“The man in the street is just not going to be able to get representation.”
The Galashiels-based lawyer said the central belt was “probably not too bad” but the crisis was already being felt in rural areas.
“I’m here in the Borders. Six years ago, there were about seven of us doing civil legal aid, and now there are two.
“And that just increases the workload on those two, and so even though they’re still doing it, they’re just not able to take on cases because they’re so busy.”
Ms Thom said the government needed to see legal aid as an investment.
She pointed to a recent report by the Law Society of Northern Ireland which calculated the following impact of spend on legal aid.
It found that every £1 invested in family legal aid generates £3.62 in social value, while every pound spent on civil legal aid generates £4.55 in social value.
For criminal, the return is £12.71 in social value.
Overall, the research found that for every £1 invested in legal aid, £8.32 is generated in social value., with 71% of that going to clients and their families, 16% to public services, and 13% to the criminal justice system.
“That’s something the government should be paying attention to. I mean, goodness gracious, if we can spend money to save money surely, that’s something to be thinking about.”
In February 2017 the then minister for community safety and legal affairs, Annabelle Ewing, invited Martyn Evans, CEO of the Carnegie Trust, to chair an Independent Strategic Review of Legal Aid in Scotland.
His report, published a year later, made 67 recommendations and called for wide-sweeping reform.
However, the Scottish Government has yet to publish any sort of legal aid reform Bill.
“There was some suggestion that it was going to be coming out this year, but when we talked to the government, they said, oh no, it’s another, another year or so.
“We need legal aid reform. I mean, it isn’t just fees, the whole thing needs to be looked at. “And everybody, at some point thought that was a good idea. And then, for some reason, it’s just all been put on the back burner.”
“I don’t know whether it’s just that they feel that legal aid isn’t popular, or when there are such budget constraints their priorities have to be something else.
“What we need to convince them of is that it’s very short-sighted sighted and they need to start thinking long term and recognise that the whole system’s going down the tubes.
“Access to justice which is the backbone of our whole society, is being disregarded.”
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Responding to Ms Thom’s comments, a Scottish Government spokesperson said: “We recognise that the legal aid system needs improvement and reform and we continue to engage on this with partners, including the Law Society of Scotland and representative organisations.
“The Victims Minister has committed to taking forward reforms within this parliamentary session.”
A spokesperson for the Scottish Legal Aid Board said: “While the civil legal aid system is generally effective in delivering help to those in need there are some challenges in relation to certain types of cases or locations.
“That’s why we’re doing a full geographical analysis of supply, as we’re committed to working with solicitors and advice sector to find out where any gaps exist.
“The number of grants of civil legal aid has increased nationally by 7% over the last ten years.
“Firms based in the Scottish Borders saw a far larger 24% increase, representing an additional 49 cases, while for firms based in Orkney there was a fall of 9%, or four fewer grants.
“A similar pattern is seen when looking at grants for people living in the Scottish Borders, although the total number of grants is also higher: while most people living in the area appear to be represented by local solicitors, some are also obtaining help from solicitors elsewhere.
“As a result of these trends, the number of grants per capita shifted from being under to just over the national average.
“In Orkney too, more local people were granted legal aid than ten years ago – despite the small fall in the number of cases being dealt with by local solicitors – suggesting more help is being offered by firms in other areas.
“The number of grants per capita also rose in Orkney but remains below the national average.”
