Miller: Trust the people who know the case
A Dutch-style “high trust” model for legal aid could “significantly reduce bureaucracy” for law firms and make it more “economic” for them to do publicly funded work, the Law Society’s head of justice has argued.
Richard Miller told MPs on the justice select committee that the Legal Aid Agency (LAA) was forced to adopt a similar approach after a cyberattack led to a massive data breach in December 2024.
Lessons could be learned both from the “high trust” model operating in the Netherlands, where lawyers are treated as trusted intermediaries, and the LAA’s contingency arrangements, he said.
The latter meant that, “rather than government officials taking decisions at various stages in every individual case, a lot of that decision-making was delegated down to the professionals who are representing those clients, who know the case, know what’s needed and have the professional judgement to take the case forward”.
Mr Miller said maintaining this approach could “significantly reduce bureaucracy, which would help with the economic case for doing legal aid”.
Firms would be able to provide advice and progress cases quickly “without having to keep going back to the government agency and wait for decisions”.
Mr Miller described the current approach to administering legal aid as “rather penny-wise and pound-foolish, frankly”.
At the first evidence session of the justice select committee’s new inquiry on access to justice, Mr Miller also said that the criminal legal aid duty solicitors were “a profession going extinct in front of our eyes”.
With an average age of 51, and almost half of duty solicitors over 50, he said the scheme was not sustainable unless the recent increase in rates was accompanied by regular increases.
He described the way criminal lawyers were paid for work in the magistrates’ courts was “the system that worked best”, with a lower fixed fee for the majority of more straightforward cases, a higher fixed fee for more complex cases, and hourly rates for the most complex.
Rohini Jana, director of policy at the Legal Aid Practitioners Group (LAPG), told MPs that those who received universal credit should automatically be regarded as being in financial need for the purposes of the legal aid means test.
“That would save a huge amount of time that providers currently spend on checking financial eligibility against the means threshold.
“That’s unbillable time for providers. If we could speed that process up, if providers did not have to do it, it would make practices more financially viable.”
Ms Jana said LAPG research showed that legal aid providers currently spent an average of two hours, or a quarter of their working day, on unbillable tasks.
Kirsty Brimelow KC, new chair of the Bar Council, said that the issue with the £34m promised by the government to increase the fees of criminal law advocates was timing, and that it “must happen now” and not when cases came through in two years’ time.
She suggested that if money from assets recovered by the criminal justice system was spent on legal aid instead of handed over to the Home Office, it would at least provide a “sticking plaster” for the system.
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