Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Eaton Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, when I first looked at the Bill, I was pleased to see how much vulnerable adults and children are protected by the provisions of Schedule 1. One has only to look at the paragraph headings to see the protection that is given: for example, “Care, supervision and protection of children”, “Special educational needs”, “Abuse of a child or vulnerable adult”, “Working with children and vulnerable adults”. All these groups will remain within the scope of legal aid. Further headings comprise: “Mental health and mental capacity”, “Facilities for disabled persons”, “Inherent jurisdiction of High Court in relation to children and vulnerable adults”, “Unlawful removal of children from the United Kingdom”, “Family homes and domestic violence”, “Victims of domestic violence and family matters”, “Mediation in family disputes”, “Protection of children and family matters”, “Children who are parties to family proceedings” and “EU and international agreements concerning children”. Over and over again the emphasis is placed on keeping the needs of children and vulnerable adults within the scope of legal aid. I look forward to hearing from my noble friend what proportion those headings represent of all the cases involving children. Those children’s and vulnerable adults’ issues will continue to be within the scope of legal aid.

There is one aspect of Amendment 3 with which I entirely agree—I spoke about this in Committee and on Report—which is that legal aid should be maintained for a review or appeal on social welfare issues and for,

“civil legal services relating to an appeal to the Supreme Court”.

That is so for children, but my position is that it is important that legal aid for appellate processes should be available to all adults and children.

I listened with a great deal of sympathy to the exposition of Amendment 4 by the noble Lord, Lord Cormack, but he should bear in mind that conditional fee agreements with one-way costing, which is the new way in which conditional fee agreements are to be entered into, will be available for people who are not covered by legal aid, and the new changes will be much more acceptable. For example, there will be protection against the defendant’s costs for a losing claimant—a losing child or adult. They will not have to pay those costs. We have discussed those issues at length. The noble Lord should also bear in mind that the Government have announced that if you are legally aided and you obtain damages in a personal injury case, 25 per cent of those damages will be taken for the supplementary legal aid scheme to fund other people who are deserving of legal aid. Therefore, entitlement to legal aid will not mean that a person gets their damages in full. It is probably better in many of these cases to have a conditional fee agreement as it has been refashioned than it is to receive legal aid. I am sure that that is the way in which the legal profession will go.

[Baroness Eaton]

My Lords, I speak in support of the children’s amendments moved and spoken to by the noble Baroness, Lady Grey-Thompson, and my noble friend Lord Cormack. I should like to add my thoughts on Lord Newton, who kindly supported the amendment. I know that we will all miss his integrity and compassion in all our debates, particularly around these sensitive subjects. I also thank the noble Lord, Lord McNally, because I and other noble Lords have had a number of conversations with him, and he has been most gracious in his dealings with us. However, I still find myself in the unhappy position of being unable to support the Government’s intention to remove the clear and straightforward right to legal advice for children under 18 generally, and for all children who are injured in clinical negligence cases.

The Bill as it stands draws a distinction between, on the one hand, any child who suffers brain damage as a result of medical negligence before the age of nine weeks, and, on the other, any child suffering injury of any other kind caused by medical negligence—including a child who suffers from brain damage when they are nine weeks and one day old. Let me tell noble Lords about a Plymouth boy who suffered brain damage at the age of one when doctors at the Frenchay Hospital in Bristol failed to follow up a suspected aneurysm. Months later, he suffered a devastating bleed in his brain, which would have been avoided if the correct procedure had been followed. The boy will require care for the rest of his life; he cannot talk and will never be able to work. A settlement with North Bristol NHS Trust at the High Court in November 2011 will help to provide care for the rest of the boy’s life. He is now 10. The case could not have been started without legal aid, which would not be available if the Bill were to pass unamended.

I simply do not see how children who have been injured in these often heartbreaking circumstances can be divided into two groups in this way. We would allow legal aid for a baby suffering brain damage at birth, but deny legal aid to a baby suffering brain damage in hospital at the age of one. Or we would prevent a child who has been paralysed from seeking help. Just imagine two babies at two weeks old in the same hospital. One is brain damaged and the parents can seek support on their behalf, while the other is paralysed and the parents cannot get legal aid.

Are we really saying that a brain-damaged child who can walk needs more care and support than a child who has to be carried to the bathroom and turned in bed during the night? The severe difficulties facing the child’s parents will be exactly the same in both cases. They will be desperate for help. They will want to know whether they have a legal case and, first and foremost, they will be giving their child the day-to-day care and love that all parents must, whatever the difficulties.

Are we really going to ask half of those parents to appeal to the director of legal aid casework to see whether their child qualifies for legal aid as an exceptional case—as if that would be a satisfactory way to organise legal aid for children even from the Government’s point of view? I ask noble Lords to consider the expense, bureaucracy and delay that will result from such an approach.

I have highlighted medical negligence but, as a former leader of a local authority, I could go through each subject heading and make a similar case. The simple truth is that children are defined as minors in law because they cannot represent themselves and sometimes need protection and redress from their families and from the state. It is not good enough to suggest that a social worker can apply for their legal support as an exceptional case. Social workers are not legal executives and have no legal training. Inherent in that suggestion is a misunderstanding of the nature of the legal actions that may be taken. In most cases, the child will be challenging a decision or action taken by the local authority. Do we really believe that every social worker will apply for a child to have legal aid in cases which challenge his or her decisions or those of his or her employer?

All of us in this House understand that in a healthy democracy, it must be possible to challenge the state, particularly where children are concerned. We also understand that there are lots of terrible cases where children’s voices have not been heard, which is why we need to ensure that they can take independent legal advice that is accessible directly, not via a social worker or any other arm of government.

I support the amendments because I believe that they will save an enormous amount of trouble and wasteful expenditure for the Government, whom I support. I want to help the Government to pull back from what would be a regrettable and avoidable mistake, and they will save a great deal of anxiety for parents who are already coping with more than anyone should have to bear.

[Lord Avebury]

My Lords, I would have been inclined to support the amendment if I had not been here to listen to the debate and heard what my noble friend had to say, which appears basically to contradict the argument just made by the noble Baroness, Lady Eaton. She was saying that in the case of the infant who died at Frenchay Hospital, the case could not have been brought if legal aid had not been available; but my noble friend said that it was preferable, in terms of the amount that the litigant would receive, to conduct a case of this sort through the conditional fee arrangements which are now available. The litigant would have ended up with more money than would have been available to the child under the arrangements that prevailed at the time of that terrible accident.

I should like to hear from my noble friend when he winds up whether it is a general principle that can be accepted on all sides of the House that people who were formerly legally aided would have done worse than those who are now to be conducting their cases under the CFA. Saying that we do not need an arrangement of the sort put forward by the noble Lord, Lord Cormack, is a very powerful argument.

I also thought that perhaps the noble Lord had failed to notice that in all these cases involving children there is a litigation friend, who has to be approved by the court. Therefore, his comment that we are looking at people who are least able to help themselves may not be altogether valid. The parent or a suitable adult always appears on the child’s behalf and the child does not have to go into the court without that support. Therefore, although children may be apparently less able to conduct litigation, they do not have to deal with these matters in the court; litigation friends appear on their behalf.