Assisted Dying Bill [HL]

Baroness Eaton Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness Eaton (Con)]

My Lords, my noble friends Lady Seccombe, Lady Neville-Rolfe, Lady Morris of Bolton and Lady Manzoor all apologise for not being here and wish to be associated with my comments this afternoon.

No one can be forced to go on living. To treat a person without consent, even if life-prolonging, is unlawful. Any person can refuse or halt life-extending treatment, and doctors have a duty of care to alleviate any resulting pain or distress. This was well illustrated by the death of Noel Conway, who had motor neurone disease. He had campaigned for a change in the law, and he died peacefully in June, after asking for the artificial ventilation keeping him alive to be removed.

There already exists a right to die, but what does not exist is a right to require a third person to play a part in killing another. There is no right to die in international law, as confirmed in Pretty v United Kingdom in 2002. The European Court of Human Rights did not consider the blanket nature of the ban on assisted suicide to be disproportionate.

Assisted suicide is far from a fully autonomous decision. Suffering patients may choose assisted suicide out of a sense of responsibility to their families or communities, rather than from a personal desire to die. Autonomy then becomes a form of abandonment. Laws form social opinions. An assisted suicide law, however well intended, would alter society’s attitude towards the elderly, seriously ill and disabled, sending the subliminal message that assisted suicide is an option they ought to consider.

Canada has been criticised by successive United Nations special rapporteurs on the rights of persons with disabilities for the impact of its assisted suicide law on persons with disabilities. Significant concern was expressed at a growing trend to enact legislation enabling access to medically assisted dying based largely on having a disability or disabling conditions, including old age.

The right to die can easily become the duty to die, as the suicides of the elderly and infirm become normalised. Dutch ethicist Professor Theo Boer, who changed his position after reviewing thousands of cases of euthanasia, noted:

“Pressure from relatives, in combination with a patient’s concern for their wellbeing, is in some cases an important factor behind a euthanasia request. Not even the Review Committees, despite hard and conscientious work, have been able to halt these developments.”


I cannot support the Bill.

Non-fatal Strangulation and Suffocation

Baroness Eaton Excerpts

Thursday 8th July 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I recently answered questions on the End-to-End Rape Review Report, which set out a robust programme of work right across the criminal justice system and beyond to make sure that we respond appropriately to rape and sexual violence offences. We want to increase the number of cases reaching court, reduce the number of victims who withdraw from the process and ultimately put more rapists behind bars.

[Baroness Eaton (Con) [V]]

My Lords, is the Minister aware of the Training Institute on Strangulation Prevention in California, which is helping tackle the crime of strangulation by sharing knowledge and training resources in the United States? Does he agree that, given the very welcome new offence in the Domestic Abuse Act, it would be sensible to investigate how a similar centre for expertise here could help drive the changes that the Government are making to tackle strangulation and suffocation? It could share training resources, encourage the sharing of knowledge and co-ordinate research so that more victims of this violence could be protected, and more offenders held to account for these crimes.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am confident that my officials will be aware of that programme, but I personally am not. Could my noble friend write to me—or I will write to her—so that we can exchange information about that? It sounds like a very useful programme and I would be very happy to learn more about it.

Marriage and Religious Weddings

Baroness Eaton Excerpts

Monday 28th June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble and learned Lord knows that it is a high priority, because this is one of the issues that both the Law Commission and the Nuffield Foundation are looking at. We have also looked at the sharia review. As I have said, our position is that we want to make sure that people are properly protected, though I would suggest that it is as much a matter of education as it is of legislation.

[Baroness Eaton (Con) [V]]

My Lords, numerous independent reports, including those commissioned by the Government, have confirmed that some sharia councils embed discrimination against women, including against those women who use sharia council services on matters of marriage and divorce. Given that countless women are suffering as a result, may I press my noble friend the Minister for an assurance that we will see government legislation sooner rather than later?

[Lord Wolfson of Tredegar (Con)]

My Lords, people may choose to abide by the interpretation and application of sharia principles if they wish to do so—that is a matter of religious freedom—provided that their actions do not conflict with the national law. But, importantly, all individuals retain the right to seek a remedy through the English courts in the event of a dispute. For these purposes, the law of England and Wales in relation to the inheritance of property will prevail. We are looking at legislation, and I will of course update the House and my noble friend as and when we reach a decision.

Prisons: Self-harm Among Women Prisoners

Baroness Eaton Excerpts

Monday 15th March 2021 Lords Chamber

Asked by

[Baroness Eaton]

To ask Her Majesty’s Government what steps they are taking to address the level of self-harm among women prisoners.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, we are determined to reduce the level of self-harm in the women’s estate. We have established a women’s estate self-harm task force to address this. Alongside interventions to mitigate the impact of Covid-19, such as increased video calls with loved ones, the task force is co-ordinating longer-term work—including the introduction of key workers, expanding therapeutic services and improving gender-specific training—to address the factors driving self-harm in the women’s estate.

[Baroness Eaton (Con) [V]]

I thank my noble friend the Minister for his reply. Female offenders are more vulnerable than male offenders and benefit from help and guidance from social workers. One of the recommendations in the Farmer review of female offenders published in 2019 was to have a social worker based in all prisons to support vulnerable women. What progress has been made to achieve this?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend raises an important point. We are working to improve the availability of social work in prisons. She will be aware, of course, that at the moment all prisons are hampered by the Covid-19 pandemic in what they can provide. However, for example, we have been able to reintroduce chaplaincy into prisons at a very significant level, and the relevant authorities are trying to ensure that all services, including social workers, can be reintroduced as well.

Arbitration and Mediation Services (Equality) Bill [HL]

Baroness Eaton Excerpts

Friday 23rd October 2015 Lords Chamber

[Baroness Eaton (Con)]

My Lords, it is hard to believe that circumstances in the United Kingdom in the year 2015 for some women can be so unacceptable as to make this Bill necessary. I congratulate the noble Baroness, Lady Cox, on bringing to our attention the various issues that highlight the need for this Bill. The noble Baroness, Lady Donaghy, will be most interested that I was fortunate, being brought up as a woman in Yorkshire, that both my mother, who was born in 1906, and her mother before her were exceptional, independent and liberated women, who ran their own businesses—a very unusual occurrence in that generation. In my family, equality in all contexts was a given. For equality to be denied for so many in this country is totally unacceptable.

My working-life experiences as a politician and a teacher have brought me into contact with women for whom equality in the sense that we experience it, both socially and before the law, is unknown. I have become increasingly concerned that many women and girls in the United Kingdom are in this day and age suffering systematic religiously sanctioned gender discrimination. There is, as we have heard, increasing evidence to suggest that in some instances sharia law is being used as an alternative to proper legal process. I have many female friends and acquaintances born and educated in this country who have grown up with their families respecting the rule of law in this country first and foremost while still being devout Muslims. However, many women not born here, lacking language and education, are in a much more vulnerable position, often unaware of their rights under British law. As leader of a council, I became aware of many women living in close-knit communities, suffering domestic violence which was condoned by the family, and women who were being divorced against their wishes, who had no legal redress and who were left to live in penury.

We must all be very clear that nothing in this Bill has any negative impact on ecclesiastical courts with a religious and spiritual jurisdiction; nor does it prevent the individual’s right to practise their religious faith. Anyone who wishes can surrender their rights under English law in favour of religious rulings. The right to practise a religion as one wishes will not be affected. This Bill recognises legitimate forums of arbitration, including Muslim arbitration tribunals. As mentioned earlier, problems arise when these tribunals pretend to have actual legal power when, in fact, they have none. As the current law has not been sufficiently effective, I welcome the fact that the Bill creates a new criminal offence of falsely purporting to act as a court. All those who have read the testimonies given by so many and listened to the contributions from your Lordships today will, I am sure, welcome this Bill and wish it a speedy passage.

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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Eaton Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Eaton]

My Lords, I speak in support of Amendment 46. As noble Lords know, this amendment seeks to protect access to legal advice, and when necessary to legal representation at tribunals and in court for all children under the age of 18. It seeks to maintain the system as it is at present, working reasonably well at low cost and protecting the rights of the most vulnerable children in the land. I strongly support the Government’s determination to drive down the deficit and attack waste in public expenditure wherever it is found. However, I also strongly support policies that do not create mountains of red tape and do not push unbudgeted costs on to local authorities.

It is because we must do everything possible to reduce the deficit that I cannot support the proposals to remove legal aid from 6,000 children every year, as would happen if the Bill passed without amendment. That would cause enormous knock-on costs to the public purse that will far outweigh the £6 million to £7 million that the Ministry of Justice believes it can save from its legal aid budget. As a matter of principle and conscience, I cannot support a proposal that will see a child go into the courtroom alone to argue his or her case against a barrister paid for by the taxpayer. This is what will happen in hundreds of cases every year where children find that they must contest decisions about their lives taken by the Home Office, education authorities and social housing providers.

By removing legal aid for welfare benefits advice to children in their own names, the Ministry of Justice believes that it will save £260,000 a year. This is at a time when there has been a complete failure to collect £1.5 billion in fines to be paid by criminals.

There can be no doubt that if a child has suffered harm because of a decision made by a public authority, and if the child is unable to challenge that decision, there will be consequences and damage to that child’s life which the rest of society and the taxpayer will ultimately pay for. We will reap what we sow.

We should remember that the ministry’s own impact assessments, published in support of the Bill, admitted that it created a risk of “increased criminality” and increased costs to other government departments and local authorities. When the Justice Select Committee in the other place asked the ministry to quantify these unintended costs it received a reply that should give us all pause for thought. The ministry’s response to the consultation on the Bill says:

“The lack of a robust evidence base means that we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size”,

and that it is,

“not possible to quantify accurately these wider costs”.

In other words, we are flying blind.

The Bill asks us to support spending reductions that even its authors cannot say will ever be achieved. The legal aid budget reductions have the extremely unusual distinction of making some of the most hardened supporters of spending cuts feel very uneasy. I put myself in that category. The noble Lord, Lord Tebbit, says he fears the cuts to legal aid for children in medical negligence cases go too far. The chief executive of the TaxPayers’ Alliance, Mr Matthew Elliot, says:

“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.

We must listen to the people and organisations who are going to be left to pick up the pieces if children cannot get help with their legal problems.

I would like to tell noble Lords about some of the detail as it will affect local authorities and children in immigration cases. Last year there were 2,490 immigration cases involving children in their own right. These will mainly be children who are not living with their parents, sometimes after escaping difficult family circumstances, or having been victims of trafficking. On Report in the other place, the Justice Minister said:

“Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support”.—[Official Report, Commons, 31/10/11; col. 689.]

So here we have a knock-on cost of the kind the ministry says that it cannot quantify accurately.

The Local Government Association, of which I am a vice-president, says:

“Transferring responsibility to councils in this manner, without consideration of the funding implications and at a time when they are already processing reductions in funding for children's services, will place resources under considerable pressure. This will have a particularly detrimental impact on the most vulnerable children who make up the largest portion of children placed in emergency or short-term care”.

The example which the Local Government Association gives of children who will be affected in this way are children who have been trafficked into the UK from other EU states, who cannot claim asylum. It is hard to think of a more desperate or vulnerable group of children. The Department for Communities and Local Government knows very well that there will be extra costs to local authority social services departments if legal aid is withdrawn from these children.

I would like to ask the Minister this evening to inform the House about the precise level of costs that will be borne by local authority social services departments, which they will then claim back from his department via the DCLG in a tangle of expensive, time-consuming and wholly avoidable red tape.

My question to the Minister and noble Lords on all sides is: how is it that we are keeping legal aid for about 35,000 cases every year involving children in their own right, but withdrawing it from 6,000 children with civil justice problems? They will all be very similar children—trusting, scared, brave and deserving of our protection. The Government have gone a long way towards maintaining civil legal aid for most children; they need move only a few steps further to protect legal aid for all of them.

[The Lord Bishop of Exeter]

My Lords, I speak as the father of a daughter with Down’s syndrome, who over the years has had to face complex welfare benefit issues. My own experience has taught me that it is not only the severely disabled for whom welfare support is complex—it can be even more so for those who suffer from a range of disabilities, each of which may in itself be classed as mild. There have been times when my daughter has been let down by the system and then, being extremely vulnerable, she has needed those able to act as advocates on her behalf.

My daughter, though, is one of the fortunate ones. She comes from a supportive family, has reasonably articulate parents and a mother who has used both her personal and professional expertise to support advocacy networks and provide advocacy support for others. What of those who do not have such resources available to them? Many of them depend for legal and procedural advice on not-for-profit agencies such as Citizens Advice. Such organisations provide essential help to ensure that disabled people have access to the benefits and support to which they are entitled, but these agencies also need support in the vital work that they do.

What Amendments 11 and 12 seek to achieve is important in providing the safety net that will enable such access and support to continue. If either were to be accepted, it would offer provisions much narrower in scope than those in existing legislation but would ensure that the resources were there for those who face both disability and, additionally, the kind of complex welfare benefits issues that arise from their disability, in order to be able to challenge decisions that adversely affected them through review, supersession or appeal.

As the noble Baroness, Lady Doocey, has pointed out, we are at a time of unprecedented upheaval in the welfare system; I see that day to day for myself. I do not criticise that; in fact I am in favour of much of that change and I understand it. Amid such wholesale change, though, with its attendant impact on the lives of some of the most vulnerable in our society, safeguarding the minimal access to legal aid in these circumstances is more important and necessary, rather than less.

I turn to Amendments 21 and 46, both of which I support. I do not add much to the weight of words that we have already heard in support of them, but I want to return to the Minister’s assurance, which has already been quoted, that as far as possible the intention of the Government is that where children are involved, legal aid will still be provided. We have also heard that on the basis of the Legal Services Commission’s data for 2009-10, around 6,000 children under 18 will no longer receive legal aid, including cases regarding immigration, welfare and education.

In that context, I return to the assurance offered by the Government that, for cases that would be excluded from the scope of legal aid, there would be a safety net in the form of the exceptional funding scheme. However, that in itself raises a number of questions. How adequately will “exceptional” be defined? Will it be driven by need or by available funding? Will there be rights of appeal? What will its real impact be?

We have heard how the Children’s Society estimates that just over 4,000 cases for under-18s will be excluded from scope and not receive exceptional funding, yet, according to the Government’s own estimates, ensuring that all children under 18 had access to legal help and, crucially, representation would cost just £10 million—a relatively small cost for a very great gain. However, if legal aid is not to be available in these circumstances, where exactly are alternative sources of funding to come from?

--- Later in debate ---

[Baroness Grey-Thompson]

My Lords, I will speak to Amendment 15, which is in my name and in the names of the Baroness, Lady Finlay of Llandaff, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Beecham. As my noble and learned friend Lord Lloyd said, this amendment seeks to retain clinical negligence cases within the scope of legal aid. It is completely non-discriminatory, is not based on age or condition and saves money.

The Government have so far argued vigorously that many cases would be funded by the proposed exceptional funding mechanism and that it was not necessary to guarantee this by retaining them in scope. While it is an improvement to have the situation clarified and legal aid guaranteed for at least this small band of cases, that is, in effect, all that the Government have provided—clarification and a guarantee of what was already on the table.

I am pleased that the Government have moved forward on the retention of obstetric cases in scope, as opposed to relying on the exceptional funding route. This is very positive. In its statement announcing the change of approach, the Ministry of Justice said:

“We also agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid”.

It went on to say:

“A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue”.

This safety net is the same one that we were told meant that there was no need to retain even the obstetric cases in scope for legal aid because exceptional funding would take care of them. It is perhaps logical to conclude that exceptional funding is no more of an adequate safety net for other highly complex and deserving cases than it was for obstetric cases. Just about every clinical negligence case is complex, which is why, over time, successive Governments have agreed that clinical negligence needs to be kept in scope for legal aid. Not only would taking most clinical negligence cases out of scope result in higher costs to the taxpayer overall, but those costs will still be there but pushed somewhere else. Even more worrying, many people will be denied access to justice.

The independent report by King’s College London identified that the unintended consequences of taking clinical negligence out of scope for legal aid would be almost three times the projected saving for the Ministry of Justice budget—costs of £28.5 million set against a “saving” of £10.5 million. These clinical negligence cases which are not in scope for legal aid will in future be able to take their cases forward either through no-win no-fee agreements or with the benefit of exceptional funding. Under the new system, even if an expert report deems a claim to be valid, there is no guarantee that the claimant will receive representation under a conditional fee arrangement. “After the event” insurance is expensive, if, indeed, it is possible to obtain it. I do not believe that exceptional funding is a sufficient safeguard.

If the Minister revisits the responses to the consultation on legal aid, he will find that the vast majority of lawyers involved in clinical negligence cases say that they will not be able to take on many of these cases under the new arrangements. The noble and learned Lord, Lord Lloyd, cited Lord Justice Jackson, who said that the most expensive and inefficient mechanism that it is possible to devise is being put forward to achieve this policy objective. I agree with that comment. Solicitors will be forced to cherry pick only the most obvious cases of negligence, with others being left with no way of moving forward. I do not believe that this is acceptable in our society.

[Baroness Eaton]

My Lords I ask noble Lords to support Amendment 31, which stands in my name and in the names of my noble friends Lord Newton and Lord Cormack and the noble Lord, Lord Crisp.

Amendment 31 would allow legal aid for all children who are victims of clinical negligence and not just some children, which, unfortunately, is the current position of my Government. I have both personal and professional experience of these cases as a mother and a former leader of a metropolitan district council. I would like to tell noble Lords something of my experiences. When my eight year-old boy was diagnosed with a psychosomatic illness, my husband and I went through the worst time trying to persuade doctors that something was seriously wrong. Eventually, the diagnosis was found to be faulty and we discovered that our son was in fact suffering from a very virulent form of bone and tissue cancer. Even though we had a very strong clinical negligence case, my husband and I decided not to pursue it because it would be too stressful and we had the resources to support my son. However, not every family is in this privileged position, and I met many through those dark times, and since, who needed to make a claim so that their families could survive.

I have seen at first hand how compensation for medical negligence allows parents to continue to care for their children in their own homes. It does not make it easy but it does make it possible. I have also seen what happens to parents who do not receive financial compensation. Caring for a child who has been the victim of a medical accident and is severely disabled, sick or injured normally gets progressively more difficult and can frequently result in separation and divorce and depression and other mental health disorders in parents. It can also result in an inability to care for other children in the household and parents losing their jobs, becoming homeless and having to be rehoused in social housing, and with the victim having to be cared for in residential homes away from their family. In other words, everyone ends up suffering—a child who is the victim, the parents and the wider family and the taxpayer. As a councillor, I know that all too frequently the local authority has to pick up the pieces and the financial cost.

The proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill can only make a bad situation worse. The concession proposed by the Government allows legal aid where a baby is the victim of clinical negligence from the period of conception through to eight weeks after his or her due date in the case of neurological injury only. It relates only to babies who have suffered damage to their brain. As I understand it, children with physical disabilities resulting from clinical negligence at birth are not covered, and conditions such as Erb’s palsy would not fall into the category of receiving aid. This means that if a full-term baby is the victim of clinical negligence when it is 73 days old, he or she will be ineligible for medical negligence. However, if he or she suffers neurological damage two days earlier at 71 days, they can be granted legal aid. This seems a rather arbitrary and upsetting situation. I ask noble Lords to try to imagine how they would explain to their friends, family and neighbours why a baby who suffered neurological injury at birth could have legal aid but a baby blinded at birth, say by a forceps delivery, could not. Last year, £4.6 million was spent on legal aid for children who were victims of clinical negligence. The majority—estimated to be around £3 million—went on legal aid for babies who suffered neurological damage. As I say, this group has been conceded by the Government, so in reality we are arguing about a further £1.6 million or so to cover all remaining children.

I wish to tell noble Lords about Sophie Tyler from Newport. When Sophie was 14 years old, she went into her local hospital for a routine bladder operation. She underwent an epidural, which, sadly, went very wrong. Sophie is now paralysed from the waist down and will always be in a wheelchair for the rest of her life. Sophie is now 17 years old. She took action with the help of legal aid, and three years on she has received a medical insurance payout. This compensation will never make amends for what has happened to Sophie, but it will make it possible for her to live independently with support. In the cases of children, compensation pays for extensions to be built downstairs with bathrooms and bedrooms so that children do not have to be carried upstairs, which is more difficult when they become adults. Compensation pays for the widening of doors to allow wheelchair access and for hoists, electric wheelchairs and other specialist equipment not available on the NHS. It pays for occasional night-time and holiday respite care so that parents can get some much needed sleep and it pays, where possible, for extra tutoring to make up for lost schooling along with additional physiotherapy and holidays. Above all, compensation allows parents to carry on in the knowledge that there is someone who will take care of their child after they themselves die. Believe me, this is what worries parents more than anything else.

I therefore ask noble Lords to support children like Sophie next year and the year after—children who, through no fault of their own, become the victims of medical negligence and need legal aid to pursue their cases. I hope that my noble friend the Minister will concede legal aid for all children and recognise that although the concession proposed by the Government supports children with neurological injury, it does not address the needs of the remaining children who suffer hugely as a result of medical negligence and accident.

[Lord Clinton-Davis]

I follow the noble Baroness, Lady Eaton, with temerity, as she has made a remarkable speech based on her personal knowledge. I thank her for what she has said.

I also speak with experience of clinical negligence cases. I practised as a solicitor for some 50 years and on many occasions during that time came across cases which involved clinical negligence. The Government appear to be suggesting that clinical negligence claims should proceed by way of joint expert reports. I think that that is pretty impractical. Medical and other experts often disagree, and to embark on a joint report is often totally impractical.

Legal aid should be available in all cases of clinical negligence where it appears to the Law Society, or whoever is arbitrating on the issue, to be practical and necessary. The ability to go to joint experts, where it is proved to be absolutely essential, should remain part of our legal process, and lawyers ought to be given the opportunity to do precisely that. It would save rather than expend more money if we were able to embark on such a policy, and that has been proved in practice time and time again. Why are we embarking now upon the totally impractical idea of a single expert?

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Eaton Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Goodhart]

My Lords, the speech of the noble and learned Lord, Lord Lloyd, at the beginning of the debate was both thorough and persuasive. There is nothing that I wish—or would be able—to add to the basis of his arguments. It is widely believed, and I am one of the believers, that post-accident insurance premiums have been an unsatisfactory element of legal aid in the past. It is therefore very undesirable that that should be continued specifically through Clause 45. The noble and learned Lord, Lord Lloyd, made it clear that Amendment 25 is highly preferable to the Government’s Clause 45. I hope, therefore, that the Government will see fit to accept that conclusion.

[Baroness Eaton]

My Lords, I shall speak to my Amendment 36A, which deals with the position of children in medical negligence cases. I am not a lawyer and so I speak with some trepidation, having heard so many noble Lords who are experts in the field of legal matters.

The proposals to remove clinical negligence entirely from the scope of legal aid will have an enormous impact on the most serious cases of clinical negligence, especially where catastrophic injuries to children have occurred. A freedom of information request to the Ministry of Justice revealed that in 2009-10, 870 medical negligence cases in the name of children were supported by legal aid. Under the proposals in this Bill, 640 of those cases would no longer be supported by legal aid. Whenever I have raised this as an issue, I have been told—as have many Members—that the Government’s view is that these matters can be dealt with through conditional fee arrangements. We have heard from my noble friends Lord Faulks and Lord Carlile, the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Lloyd of Berwick, about the complications and why this is likely not to provide a satisfactory response.

Cases that are brought for children are often very long—sometimes complicated matters can last six or seven years—and cases that are not quite so complicated can still last for 34 months and longer. This is a terrible situation for families and parents to consider and contend with. Of the £17 million medical negligence cases funded by legal aid, less than a quarter are children’s cases. I understand that the majority of these involve perinatal injuries. These are particularly difficult cases and success is very uncertain.

When we are talking about the technicalities of legal aid and all that is involved in it, we should remember that clinical negligence cases affect not only the child in question but the parents and the whole family. Having a child myself who was wrongly diagnosed with a psychosomatic illness, which was in fact a very virulent form of bone and tissue cancer, I understand something of the trauma felt by such families. We did not proceed to litigation as the stress of doing so was, we felt, too great for us to cope with. We were an emotionally strong family in the fortunate position of being both strong for each other and able to afford the additional costs that occur to families in such situations. Others are not always so lucky. For families with a number of other children needing parental attention, the difficulty for parents to retain their employment can be a problem. I have seen many situations where the stress on families of looking after such children is so high that it has brought about a breakdown between parents.

The process of litigation with the support of legal aid is traumatic enough, but for a child to be denied that right must add hugely to the burden on the child and the family. I do not believe generally that the state should do things for people that they can do for themselves. I do believe, however, that a civilised society should provide a safety net for the most vulnerable.

I also do not believe in wasting public money or spending it unwisely. As we have heard today, independent research on behalf of the Law Society has found that the knock-on effect of the proposals in this Bill for legal aid in clinical negligence cases will cost almost three times the Ministry of Justice-predicted savings. I hope the Minister will be able to reassure your Lordships that this issue will be reconsidered and that the Ministry of Justice will produce a financial impact assessment so that decisions will be based on sound information.

[Lord Clinton-Davis]

The noble Baroness has spoken from personal experience of this issue and I hope that the Minister will take into account everything she has said.

Representations on this issue have come from many sources: the Law Society, firms of solicitors practising in this area, and the National Health Service Litigation Authority. I have received—as have many noble Lords, no doubt—a letter from a firm of solicitors called Withy King, which raises two particular issues. It asks:

“What is being done to address the increase in medical negligence in the NHS and what steps are being taken to minimise the risks and ensure patient safety?”.

The Minister should address this issue. It also asks:

“What is being done to ensure that the NHSLA handles litigation appropriately, settles claims quickly, makes payments when they are due and is generally fit for purpose?”.

Again, it is incumbent upon the Minister to address this issue.

I apologise to the noble and learned Lord, Lord Lloyd of Berwick, for being absent for part of his speech. He may have addressed these issues himself—I do not know. I had to make an urgent phone call so I apologise. There is no doubt that the issues raised by Withy King are complex, but they are essential. Therefore, I hope that the Minister will focus his attention on the points it has raised, which arise out of professional experience, and that is most important.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Eaton Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Howarth of Newport]

I have a number of anxieties about the impact of the Government’s proposals on children in painful and difficult situations. If the Minister can reassure me that my anxieties are misplaced I shall be more than pleased. However, I suspect that they are valid and that a number of amendments in this large group would be helpful.

First, I am concerned about inequality of arms. Wealthy people will be able to go to court armed with their lawyers while people on modest incomes will not. They will therefore appear either as litigants in person or cave in and be defeated because they lack the legal advice and support that would allow their case to be heard on a fair basis. Secondly, legal aid is to be confined to cases of physical or sexual assault. Surely that is too narrow. It will leave unhappy children in inappropriate residential and contact arrangements, split off perhaps from siblings and grandparents. We should surely widen the range of circumstances in which legal aid is available in support of children in those situations.

Thirdly, I think that there will be a perverse incentive. If an allegation of abuse would be a gateway to legal aid, some parents may be tempted to up the ante. In particular, we should be concerned that there may be cases where there has been some violence during the breakdown of the marriage or relationship but there is not a longstanding history of violence and there is no persuasive reason to suppose that there would be patterns of violence in the future; the violence has been generated by the crisis in the failure of the relationship. I do not think that it is in children’s interests that contact arrangements should be determined by such a factor. Of course, it will increase the private law workload of CAFCASS.

Fourthly, there is possibly another perverse incentive if a trigger for legal aid is to be the existence of a formal child protection plan. Some parents may be tempted to allege child maltreatment when other forms of help would be more appropriate and better for the children. Clogging up the child protection system could be disastrous. Again, more private law cases could spin over to the children’s social care workload which is already staggering following the Baby P case and will be under immense pressure with the cuts to come. There will be more formal child protection investigations and more case conferences, often when a more consensual approach would be more in the interests of the child. I fear that there will be increased and prolonged bitterness between parents.

Finally, while the Bill does not propose changes to legal aid for children and parents involved in public law care, clogging up the system with private law cases and litigants in person will have an adverse effect on the speedy resolution of such cases in the courts. That will be harmful, particularly to young children for whom it is very important to have a speedy return to permanent family arrangements, whether with parents, relatives or adopters.

[Baroness Eaton]

My Lords, I rise to speak to Amendment 34 standing in my name and the names of my noble friends Lord Newton of Braintree and Lord Cormack and the noble and learned Baroness, Lady Butler-Sloss.

The reductions to the provision of legal aid as proposed in the Bill will leave 40,000 children and 69,000 18 to 24 year-olds struggling with serious legal problems relating to employment, education, welfare benefits, homelessness and debt. Children and young people affected by these changes are among the most vulnerable in our society, with 80 per cent, as we have already heard from the noble Baroness, Lady Benjamin, of young people reporting civil legal problems also facing challenges and great disadvantages.

The cost of legal aid for children is small compared with the total amount spent on legal aid. The cost of fully protecting all children up to the age of 18 from the cuts to legal aid would be £10 million, which is the equivalent to the cost of imprisoning just 71 young offenders. For young people aged 18 to 24, the cost is £40 million, less than half the weekly cost of youth unemployment. The cost of not providing appropriate legal advice is far greater. We know that when young people do not get advice their problems increase. There are well researched links between civil legal problems and crime. Many young people who have been arrested have higher levels of housing problems, debt and benefit problems, all of which are key factors influencing reoffending. Fifty-five per cent of 16 to 24 year-olds arrested were experiencing at least one difficult to solve civil justice problem.

There is substantial evidence of an adverse impact of legal problems on young people’s mental and emotional health, with 34 per cent of 18 to 24 year-olds not in employment, education or training reporting stress-related illness as a result, and more than one-third going on to use National Health Service services. Citizens Advice estimates, as we have heard before, that for every £1 saved by the removal of legal aid, the Government will spend £8 dealing with the social, judicial and health issues that will result.

Recent figures from the Ministry of Justice give a breakdown of the types of cases for which children and young people use legal aid to help deal with their problems. The top four legal issues for children and young people are debt, housing and welfare benefits, asylum and immigration. Help with legal representation is most often given for housing, immigration and clinical negligence. Eighty per cent of young people reporting legal problems also face other disadvantages, including sole parenthood, having a mental health issue, being a victim of crime, or exclusion from education, employment and training.

It is disturbing to note that many children and young people in the United Kingdom meet the criteria for vulnerability. Thirty per cent of households headed by a 16 to 24 year-old live in poverty and 36 per cent of people presenting as homeless in the three months January to March 2011 were aged 16 to 24. The latest unemployment figures show that 20.2 per cent of 16 to 24 year-olds are unemployed. In 2010 approximately 225,000 young people aged 16 to 24 lived alone.

These are very serious issues for society. We have to ask why so many young people are in such a vulnerable position. However, for us today the issue is to recognise the needs that these children have and the help that legal aid can give in enabling them to turn their lives around. The Government’s proposals will remove from the scope of legal aid most cases concerning education, including disputes about exclusion, school closure issues, bullying cases, disputes about poor educational standards, disputes about grants and loans, and cases about choice of school. Only education cases involving discrimination and special educational needs will qualify for legal aid support but then only for telephone advice.

These plans will leave 29 per cent of children who are currently represented in their educational needs cases without legal representation in court. Pupils with special educational needs are eight times more likely to be excluded permanently or for a fixed period than other children. There is a strong correlation between exclusion from schooling and falling foul of the criminal justice system. Removing legal aid support that enables children to challenge exclusion may have more children turning to crime, which would lead to future youth justice costs for the Government.

I fully appreciate the Government’s desire to reduce the UK deficit, but in order for any savings to contribute to this reduction, the reforms must not generate consequential costs or the shunting of costs to other government departments. The Justice Select Committee in another place reported that the magnitude of these knock-on costs had not been estimated. I sincerely hope that, on the basis that these proposed savings of £270 million from the legal aid budget will not achieve the aim of reducing costs, the Minister will consider seriously the effect of proposed savings on the vulnerable children involved and the additional cost to the public purse of implementing the changes unamended.