Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Cormack Excerpts

Tuesday 27th March 2012 Lords Chamber

To deny children, the most vulnerable in our society, the ability to access legal aid without any understanding of what the wider consequences would be is not something we should accept. I beg to move.

[Lord Cormack]

My Lords, I will speak briefly to the amendment which stands in my name and that of my noble friend Lady Eaton and the noble Lord, Lord Crisp. Before doing so, I would like to add my tribute to those that have already been made to the late Lord Newton of Braintree—Tony Newton, as I knew him for almost 40 years. I was in the House of Commons when he joined us. He immediately made his mark as a man of calm determination who was never, even when he was in high office, tied to a particular political line. He always sought to follow his own conscience. I shall have great cause always to be grateful to him because when I was a lone voice on the Conservative Benches in speaking out at the time of Bosnia, he was Leader of the House yet he made sure that every week I was able to make my points, and he always responded with a degree of care, concern and empathy which endeared him to me then.

When I came into your Lordships’ House, we immediately became allies on a number of issues, not least those which concern us this afternoon. Lord Newton was tenacious and determined, and nobody in this House will ever forget the courage of that man, standing with his oxygen machine either by the Throne or at the Bar of the House, then leaving the machine to come and speak—most recently from near the Cross Benches—on subjects which concerned him. His name was on both the amendments that I am talking about, so in tribute to him I want to say a few words about Amendment 4. In doing so, I in no way dissent from what the noble Baroness, Lady Grey-Thompson, has said but my amendment is more narrowly focused. I had an opportunity, along with colleagues from all parties, to discuss some of these issues with my noble friend Lord McNally last week. I thank him for the care and concern that he displayed when we discussed these extremely sensitive and important issues. What I said to him then in private I say now in this Chamber: I do not for a moment question his commitment or his concern, and I know that he is as anxious to do right as we all are. However, he is a member of the Executive.

The Government have decided to make a number of cuts in all departments. One understands why, and I am not going to cheapen this speech or this House today by trying to score points about the deficit. I say to my noble friend that of course the Government have to cut, but that does not mean that they have to cut in every department when in some departments, as in his, the sums are relatively small. Those small sums, though, can make such a difference to a great many extremely vulnerable people.

My amendment concentrates on the subject of clinical negligence and children. I stress one point in particular: those who are damaged by an agency of the state have a right to expect the assistance of the state, and the National Health Service is precisely that. If, in the care of the NHS, someone is damaged through clinical negligence then there should be an automatic right of redress. That is more particularly the case when we come to children, and that is what the amendment focuses on.

We had a debate a fortnight ago about those who had suffered brain damage from clinical negligence. They were to be treated differently from those who had been damaged physically in other ways. That is wrong. One should not discriminate in that manner between those who suffer physical damage, which may be with them for the whole of the rest of their lives, and those who suffer brain damage. I am not suggesting for a minute that there should not be assistance for all—indeed, that is the substance of the amendment—but it could be argued that those who suffer physical damage, be it paralysis or whatever, and who are conscious of that are in more personal need than those who suffer brain damage and may not be personally conscious of that.

It is wrong that we in this House should be passing any legislation without pointing that out and asking another place to think again, unless of course my noble friend can accept the amendment today, which would give us all great pleasure. If he cannot, although I hope very much that he will, then this amendment should be pressed to a vote in the event of the noble Baroness’s amendment not being approved. It may well be—I certainly shall not oppose it—but, if it is not, I will then wish to press my amendment unless my noble friend has accepted its form and substance. If this House has any truly lasting point and purpose, and I believe as strongly as any Member of it that it has, then we have a duty to say, “You haven’t got this quite right. You have got to rethink”.

I suppose that I cannot be too greedy and expect the same sort of majority that we achieved yesterday, but I hope that if it is necessary to put this amendment to the vote then it will carry. Here, we are concerned with those least able to help themselves. This really is a case of, “Suffer the little children”, and I very much hope that your Lordships’ House will ask the Government to insert an amendment along these lines in the Bill before it finally becomes law.

[Baroness Howe of Idlicote]

My Lords, I, too, should like to add to the laments that we all feel at the death of Lord Newton. On both sides of the Chamber, we all picture him standing stalwart, despite his obvious disability and discomfort—determined, as always, to give a fair view of the legislation.

I thank the noble Lord, Lord McNally, for the concessions that he made, particularly his government amendment regarding the victims of trafficking. It is most welcome. I also thank him as I was one of those at the meeting—of all parties and none—at which we all put our views to him. However, there remains a need to provide greater protection for vulnerable children and young people. My Third Reading amendment, Amendment 5, is very similar—almost identical—to that of my noble friend Lady Grey-Thompson. The difference is mainly that it raises the upper age from 18 to 24 for this very vulnerable group. It would protect only the most vulnerable people—around 12,000 out of 69,000 18 to 24 year-olds who will lose access to legal aid, specifically those with a disability and those who have been in care.

It is hard to think of groups of people who are more vulnerable than those covered by this amendment. Generally, young people are rarely equipped with the knowledge, skills and legal capacity to resolve their problems without expert advice. This particularly applies to these vulnerable young people, who are far more prone to experiencing multiple and severe problems and are therefore far more likely to require this specialist legal intervention to prevent their situation escalating and spiralling out of control. How are these young people expected to cope when they have problems if they cannot obtain legal aid?

The House will not need reminding, particularly in this economic climate, that the country is experiencing record levels of youth unemployment, rising youth homelessness and increasing levels of adolescent mental health problems. These young people need special help to get them through to a more fulfilled adult life at less cost to the community. It cannot make any sense to deny them this access to the legal advice that they desperately need to help them resolve their problems and turn their lives around.

The Government have said in their new cross-departmental youth policy that they believe in providing additional and early help to disadvantaged and vulnerable young people, including those in care and those with disabilities. Our amendment would help the Government to meet this commitment. It would protect young people who have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, according to the definition of disability that is used in the Equality Act 2010. Many of this group’s problems are in the area of social welfare law, being to do with housing, debt and welfare benefits. The considerable changes that many of your Lordships in this Chamber debated during the passage of the Welfare Reform Bill will undoubtedly mean that more young people with disabilities will face social welfare problems and will need that help to understand and gain from the new benefits regime. It simply cannot be right to leave disabled young people without the support they need to enforce payment of their entitlements.

As I have said, the amendment would also protect care leavers under the age of 25. This group is also highly vulnerable. Care leavers are far more likely to end up unemployed, homeless or in prison—alas, this will happen to too many of them—and to experience high levels of common social welfare problems. They will need good legal advice to avoid poor outcomes. The amendment would cost around £4 million, a figure far lower than the cost of not providing access to legal aid for these young people.

Research by Youth Access shows that legal advice which is targeted at vulnerable groups is particularly cost-effective and that this group is more likely to experience stress, violence and homelessness if they do not manage to get good legal advice at an early stage. Each year, 750,000 young people aged between 16 and 24 become mentally or physically ill as a result of their unresolved social welfare problems. That is costing the NHS at least £250 million a year. Much of that cost could be avoided if those young people received better and earlier support. Research by JustRights shows that any savings made through denying young people civil legal aid are likely to be outweighed by increased costs in the criminal legal aid budget alone. The Local Government Association has said that it has concerns about the extra costs for local authorities arising from the withdrawal of legal aid from care leavers.

This amendment not only makes economic sense but is the right and fair thing to do if we are serious about protecting these most vulnerable members of society. I very much hope that, when the time comes, everyone, including the Minister, will support it.

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[Lord Cormack]

I am well aware of that but the point that I was seeking to make in a very brief speech was that those who are damaged by an agency of the state deserve the help of the state automatically if they are seeking redress.

[Lord Avebury]

I am not sure that that proposition is right. I do not think that my noble friend had borne in mind the possibility that the child would do better financially under the CFA. That is a very important consideration. In fact, in my mind it is the determining consideration in how I approach this amendment. If the argument of my noble friend Lord Thomas of Gresford is correct, it is conclusive that we should not support the amendment but that we should allow cases to go forward under the CFA, under which people will be better compensated than they would have been.

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Moved by

[Lord Cormack]

4: Schedule 1, page 140, line 5, at end insert—
“Children and clinical negligence(1) Civil legal services provided in relation to clinical negligence in the course of the provision of clinical services which took place at a time when the individual was a child.
(2) In this paragraph—
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;
“child” means a person under the age of 18.”

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[Lord Cormack]

My Lords, the House has just approved an amendment which I felt included my own. I am reluctant to ask the House to vote again but, since my noble friend said that Amendment 4 is not consequential, I have something of a dilemma. It is my view that what the House has decided embraces what my amendment contains. However, since my noble friend is shaking his head vigorously, I must, with great reluctance, therefore test the opinion of the House.