Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Crisp
My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Cormack, and I would like to speak very briefly following on from his eloquent speech and those of the noble Baroness, Lady Eaton, and others. First, like others, I am appreciative of the concessions that have already been made, but I think that they do not go far enough on clinical negligence. I recognise that it is a relatively small number of children who are left out by the concessions that have already been made.
As a former chief executive of the NHS, I add my simple tribute to Lord Newton of Braintree. He was chair of one of our great hospitals and, like others, I benefited from his wise and useful advice on many occasions.
Like others in your Lordships’ House who are associated with the NHS, I know very well the distress to all concerned that is involved in these clinical negligence cases. It obviously affects the children and their families, but also the staff and the institutions. What is most important here is to make whatever processes that are available as simple and quick as possible.
The Government’s proposal fails on three key points. First, what impact will these changes have on access to redress for this vulnerable group? I do not think from anything we have heard in this and earlier debates that they will improve access in any way but will undoubtedly damage it. Secondly, will it save the Exchequer and the NHS money? It will save the Exchequer money in the sense of saving money on legal aid, but all the evidence I have seen is that it will cost the NHS more through the processes that are being introduced. Thirdly, will it speed up and simplify the process for all concerned? I stress “all concerned”, including the staff of the NHS. I think the comments by the noble Baroness, Lady Eaton, made it clear that it simply will not. For all those reasons, I urge the Minister to reconsider and to accept this amendment, which will bring into scope a relatively small number of children to the benefit of us all.
Lord Faulks
My Lords, I speak as a practitioner in clinical negligence. Doctors who work in the NHS might be slightly surprised to find themselves described as “agents of the state”, but I take the point that the noble Lord makes that they should be accountable. Of course, they are accountable, and they can still be sued under the CFA system. The difference between the children in cases that are still outside scope unless this amendment is allowed and the children who will be within scope because of the concession made by the Government is, as I understand it, because of an assessment of the complexity of the cases. The Government have taken the view that because brain-damage cases require an enormous amount of investigation, there is a real risk that no one will take them on a CFA basis, whereas these children cases are, by and large—and I admit that the lines are not always hard and fast—less complex than that. I would respectfully suggest that although these are hard choices, it is a reasonable choice for the Government to have made in the circumstances.
I conclude by saying that I, too, received a great deal of assistance from the late Lord Newton as a new arrival in your Lordships’ House. I know that he would regard these brief observations of mine as—as he would describe it—very loyal, and I fear he would not have regarded that as a compliment.
Baroness Benjamin
My Lords, I support Amendments 3 and 5. I also pay tribute to Lord Newton. In the short time I knew him, he always showed integrity, dignity, compassion and a smiling face right till the end. He was a true gentleman. I also thank my noble friend Lord McNally for meeting with me, and for showing compassion and making it clear that children and vulnerable young people will continue to be covered by legal aid—and I believe him.
It therefore makes no sense for the 3 per cent of children and young people covered by these amendments to have to apply for legal aid from a fund that is called “legal aid for exceptional cases”—by definition, there will not be any exceptional cases as all children and young people are covered. Neither does it make sense to be applying for funds through a social worker or a local authority when the person or organisation being challenged may well be the young person’s own social worker or local authority. Even an adult would have difficulty with that process.
Therefore, the House has two options before it today, which are about the system and not the scope of legal aid. Option one is what Amendments 3 and 5 are all about. It would keep the current system where a child or vulnerable young person or their legal guardian can go to an independent lawyer, where they will be means-tested on the spot and their case reviewed. If they qualify, they will be given legal aid to cover them for legal advice and representation where appropriate.
Option two is the new system proposed by the LASPO Bill, in which a child will need to ask their social worker, who is not legally qualified, to make the time to apply for funding from the Ministry of Justice. However, no details have been given as to how long this will take, what legal training will be given to the social worker, how much the new system will cost, what happens if a social worker has not yet been allocated to the child or young person or how they will even find out how to do this.
I believe that the new system being proposed will be bureaucratic, expensive and time-consuming, and could lead to many miscarriages of justice. Even my noble friend the Minister says in his letter that this system will be challenged and end up in expensive cases of judicial review—meaning more money for the highest- paid lawyers, paid for by the taxpayer. This is not common sense.
I ask the Government to think again, to bridge that narrow gap, and include not just the 97 per cent already accounted for in the Bill, as my noble friend Lord Thomas highlighted, but all children, including that last 3 per cent of vulnerable children, who may be living independently from their parents, living in care or escaping difficult family circumstances. As I always say, childhood lasts a lifetime and these early experiences will have a fundamental effect on their lives. For the sake of these children, I ask the House to support Amendments 3 and 5, which would establish an independent process understood by all.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Faulks
My Lords, I should like briefly to add to what the noble Lord, Lord Thomas, has said. I entirely endorse his comments. One of the problems with ATE premiums is that they are, in effect, unchallengeable because there is an assertion of what a case costs a particular litigant and, when it comes to an assessment, no alternative is put forward. Thereby, a defendant will always have to pay that.
My second and final point is that the noble and learned Lord, Lord Wallace, said in earlier debates that the Government were proposing to increase bereavement damages by 10 per cent, along with damages for pain, suffering and loss of amenity—which, of course, are general damages assessed by judges. I understand that this proposal was made because those damages are statutory and there would need to be a formal amendment or some other device. I would be happy to accept the assurance, which I understand to be coming, that QOCS is on the way and that there will be the appropriate method of bringing it in.
Baroness Kingsmill
My Lords, I should like to speak to the amendments in my name. I am encouraged to do so because, as a former personal injury lawyer, I have a deep commitment and engagement with accessibility of claimants to fair and appropriate redress when they are suffering personal injury.
There has been a lot of discussion about the so-called compensation culture in our legal system, but I refute that: there is no such thing as a compensation culture. In fact, if you exclude motor claims, the total number of claims has fallen from 116,380 in 2001 to little over 100,000 in 2010-11. It is 15 per cent lower than that it was in 2001. The Motor Insurers’ Bureau states that total claims provision and expenditure fell by 10 per cent compared to 2009. It is important that we all understand that the so-called compensation culture is a myth, a perception which is very far from reality.
That is why I have tabled some of the amendments. They are technical. It is possible that there have been oversights by the Government. I know that a 10 per cent increase in general damages has been discussed as a possibility. The Government have said that they will implement the 10 per cent increase by unenforceable means, such as requiring the judiciary to increase damages all round, but that is not enough. It is appropriate and important that that should be in the Bill. I should like to hear the Minister's comments on that. When we are talking about something as important as access to justice, people should not be burdened with additional uncertainty about what the costs will be.
I speak also to Amendment 141ZC, which would protect claimants against excessive costs in the event that they lose their claim. It is fully in the spirit of Lord Justice Jackson’s recommendations. As other speakers have said, the amendment implements Lord Jackson’s proposals for qualified one-way costs-shifting by including them in the Bill. That seems a very sensible proposal. It means that claimants would not be scared off by the risk of astronomic costs in the event that they lose. That will encourage access to justice. There is nothing quite as scary for claimants as the feeling, when there is uncertainty about their case, that they will be stuck with a very large bill at the end of it. I would like that to be stated clearly in the Bill and I join noble colleagues in asking the Minister to consider the amendments.
Lord Faulks
My Lords, I agree with every speaker that this is a dreadful disease for which the sufferers deserve compensation. Just as importantly, they deserve compensation speedily. I am glad to say, as a practising barrister with some experience of cases of this sort, that the mechanisms and systems by which compensation can be achieved have greatly improved so that this can be done.
I agree that all these claims are thoroughly deserving. There can be no dispute about diagnosis. They are not the sort of cases that are covered by the much described “compensation culture”. The real question, though, is simply this: will these cases still proceed if the Bill becomes law? There is no doubt that they will become less profitable for lawyers, but will they become so much less profitable that these very deserving cases will be denied justice? That is the real question, I suggest.
The reason why lawyers do not take cases on CFAs—this is perhaps particularly so in clinical negligence cases—is that there are real difficulties and they might lose the case. In a series of cases on mesothelioma and other cases deriving from exposure to asbestos, the courts have done a great deal to help in terms of the law on causation. Not just through the 2006 Act but in a series of cases in the Court of Appeal and in the House of Lords, they have circumvented the difficulties in proving liability, particularly the so-called “single fibre” theory, where it was difficult to establish which of a number of employers was responsible. That difficulty is largely overcome. As I say, the noble Lord, Lord Walton, has confirmed that diagnosis is rarely controversial, so we do not have the situation of doctors disagreeing. So what is the real difficulty about these cases? There is a great deal of experience out there, both on the claimants’ and the defendants’ side, in taking these cases forward. One of the problems is not being able to identify the appropriate defendant or the policy. We have heard from the noble Lord, Lord Thomas, that steps have been taken through the ABI and other bodies to keep proper records of these matters.
However, where I have real difficulties, in agreement with all noble Lords who have spoken, is on the question of damages. A recent decision of the High Court has dealt with the quantum of damages in these cases. They are very modest. That is not because judges are not profoundly sympathetic to the claims, but simply because they are claims for pain and suffering and loss of amenity and do not involve long-term care claims or loss of earnings claims. Thus they are modest. However, I find it unattractive in the extreme that there should be 25 per cent taken off these damages, albeit that will be increased by 10 per cent. I very much hope that the Minister’s words are justified and that solicitors will not see fit—how could they?—to take a percentage of damages in these circumstances. I share with the noble Lord, Lord Alton, a revulsion of the expression “skin in the game” in the context of these desperately sad cases.
I suggest that Part 2 of the Bill is a very real and positive attempt by the Government to cope with what I have encountered as a disfiguring feature of the litigation world when inflated costs are involved and when cases become too much about lawyers’ fees and interests and insurers’ interests rather than the underlying dispute. This is a desperately sad series of cases. I share all noble Lords’ concern that damages should be recovered as quickly as possible. However, I venture caution lest, in the wake of these cases, we lose the structure and the architecture that Lord Justice Jackson put forward.
Baroness Finlay of Llandaff
I support the comments made by my noble friend Lord Walton of Detchant. As a doctor, I look after these patients and have found repeatedly that they do not even want to seek compensation but are persuaded to do so. They do not seek it for themselves as they know that their lives are over, but because they want to leave something behind for their bereaved families who will have to live on after their death, facing a loss in pension.
As has been said, a common feature of mesothelioma and the other respiratory diseases mentioned in other amendments in this group is that diagnosis is clear. Histological diagnosis under the microscope shows the fibres and fragments of substance to which these people have been exposed, such as asbestos fibres and small amounts of substances such as beryllium and silica. Another feature of these respiratory diseases is that they form a discrete group. Protection of the respiratory tract has been around for a long time but workers have not always been adequately protected. Sadly, there was a time lag in that regard. Indeed, as regards these diseases, blue asbestos was thought to be the culprit. It took some time before all forms of asbestos were identified as being fundamental pathogens. We must put the interests of the people suffering from these diseases before any other interests. For those reasons, I strongly support these amendments.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Clinton-Davis
I follow my noble friend on this issue. I apologise for confusing the amendments in the previous debate.
I hope that the Liberal Democrats will abandon their rather erratic behaviour on this occasion. The unfair dismissal amendment is vital for employees who are not unionised or where the trade unions are unable to act. I do not think there is any real chance of such employees being able to pursue their remedies effectively. That is the crux of the matter. Quite often the claims they wish to make are complex and they need professional advice. Unfair dismissal affects their livelihoods—make no mistake about that—and what is proposed in the Bill represents a bonus for unfair employers. That is wholly out of accord with what we on this side seek to achieve.
As to unemployment disputes, the significance of this proposal places an unfair burden, again, on the employees. How are they going to pursue their claims without the necessary machinery provided by the trade unions where this is not possible, or where they are expected to pursue their claims themselves without any professional advice? It is a wholly illusory and complicated procedure and ought not to be considered by any respectable Government.
Having been a lawyer for some 50 years, in both cases—unfair dismissal and employment disputes—there is no doubt in my view that professional advice is imperative. Otherwise, people will pursue claims that ought not to be pursued and eventually it will cost the taxpayer far more than if they were able to pursue the policy envisaged by these amendments.
Lord Faulks
My Lords, as a young barrister I had quite a lot of experience of going to employment tribunals. It has now become fashionable to talk about equality of arms but on those occasions when I represented the employer I dreaded the moment when the employee was unrepresented. This usually meant that, quite rightly, extra steps were taken by the chairperson and those assisting him or her to make sure that everything possible could be said on behalf of the employee. On the whole, while I am sympathetic to what underlies the amendment, these tribunals were designed for access by ordinary people without lawyers and, while I should be the last person to stress the fact that lawyers are not always the answer, on this occasion I need some convincing.
Baroness Turner of Camden
My Lords, I have spoken on this issue several times in the course of the discussion on the Bill. I support the amendment wholeheartedly. I speak, of course, as a former trade union official. It was my job when working for my union to have charge of the legal aid system that we applied to members. When I saw the provisions in the Bill, I hoped that the unions would begin to impress on their members the necessity of belonging to and having the support of the union when they are faced with this kind of problem.
It is, of course, an enormous problem for the ordinary worker and his family, who depend upon his employment, when they suddenly no longer have it. If the worker has been unfairly dismissed, they need to have access to a way of compensating them for their loss. Unfortunately, the Government also have employment policies in train generally that are designed to make it easier for employers to get rid of workers when they wish to do so.
The arrangements that the Government have in mind, which we have discussed from time to time in this House, are that if the worker wants to get to a tribunal he should have to pay to get there. A fee of £1,000 has been suggested. Furthermore, when a worker gets before a tribunal in future, it will not be a tribunal made up of lay members who have some knowledge of the working practices and industry generally; it will be before a judge sitting alone. In other words, it will be a much more legal system, but there will be no legal assistance to represent the member. All I can suggest to the Government is that perhaps there will be consequences that they had not foreseen. In other words, there will be much more interest in union membership and unions will increase their members—and the Government may not be very pleased about that.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Newton of Braintree
My Lords, I wonder whether I might be allowed to intervene from this Front Bench position without people feeling that I have fallen victim to delusions of grandeur of one kind or another.
I wish to make three points. First, I support the general thrust of the arguments that have been put forward by the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Eaton. I shall not elaborate but I think that they have made excellent points which need to be considered.
The second is to build on what was said by my noble friend Lord Cormack and, even more so, by the noble Baroness, Lady Mallalieu, about one striking aspect of the speech of the noble and learned Lord, Lord Lloyd, and indeed the note he had sent me. Had I had the temerity to intervene in the winding-up of the previous debate or had I wished to elongate my speech in that debate, I would have said that those of us who were supporting it were not hell-bent on increasing the deficit and raising the debt. The key point is that we just do not believe the Government’s figures. No one outside the Government believes that savings are going to be made on the scale that the Government claim, and in many cases we think that the deficit is going to be increased. We now have this concrete example of where the figures are wrong, and I hope that the House will bear that in mind.
Finally, one thing that sticks in my mind from this whole exercise is a seminar at which we heard from someone who had been severely damaged by clinical negligence, along with his wife. Victory in that case had enabled the wife to go on looking after the man and for him to go on having as normal a life as possible in a severely disabled state. I just ask myself how much the state saved in that one case, where the husband and wife would not otherwise have been able to go on in those circumstances. How much had been saved in terms of many years of residential care or much more extensive support from the social services department? In my view, these are the things that have not been factored into some of these calculations, and there are many others. Although not strictly related to this amendment, every child taken into care costs £36,000 a year. These are the costs that have not been factored in. I think that we are owed some better answers than we have had so far, and I hope, without much expectation, that we will get some better answers tonight.
Lord Faulks
My Lords, I take note of the indication from the noble Baroness, Lady Finlay, that the House may have heard enough but I hope that noble Lords will bear with me for a little while. I spoke on this subject at Second Reading and on a previous occasion and I should remind the House that I have spent much of the past quarter of a century working on these clinical negligence cases. I remind myself of that also, lest I should be guilty of any lack of detachment on these difficult issues.
I remain enthusiastic about legal aid. A well organised legal aid scheme with proper controls over funding, franchising of solicitors to ensure relevant expertise and a rigorous approach to the funding of individual cases is a highly worthwhile aspiration. Unfortunately, we have rarely had a scheme like that. In saying this, I do not wish in any way to denigrate the contribution of the many public-spirited lawyers who practise in the field, but too much has been spent on cases which have failed or were not really worth while even had they succeeded. It is perhaps something of an irony that clinical negligence—latterly, at least—has been a far more effectively funded area of the law than ever before. By “effectively”, I do not just mean in terms of the size of the funding; I simply mean the efficiency in the way that specialist lawyers conduct this litigation.
Not all claims have been funded by legal aid. In some there are difficulties of eligibility, and others have preferred to go the route of CFAs. These provide greater flexibility and, of course, greater profit. On the previous occasion, the Minister pointed out that more than 80 per cent of clinical negligence cases are taken under CFAs, so this remains, at least in theory, an option for the future. However, it is of course a much less attractive option. As the noble Baroness, Lady Turner, pointed out, there is no ATE insurance and success fees are limited to 25 per cent of past losses and general damages. This is particularly so with complex cases, where investigative costs are particularly expensive and may ultimately prove irrecoverable if the case fails to get off the ground or fails in the end.
I have not been, as a number of noble Lords will be aware, entirely uncritical of this Bill. In particular, I was anxious to ensure that there was a reiteration in Clause 1 of the fundamental principle of access to justice, and I was concerned that there should be additional steps to underline the independence of the director of legal aid casework. Unfortunately, my views did not coincide with the views of the Government. One reason I felt able to support those amendments was that they did not involve any government expenditure but reflected what I thought were important principles about the justice system.
However, with this group of amendments we are now concerned with areas that involve government expenditure, although quite how much, I accept, is very much open to debate. The financial situation requires there to be cuts and the Government have taken the perfectly reasonable view that the legal aid budget must bear its fair share. I remain somewhat unconvinced by the stance taken by the party opposite, which seems to be that civil legal aid would have been left entirely alone by it and, for the most part, CFAs as they currently are represent a satisfactory situation.
The Government have had to take some hard decisions in cutting back on expenditure on legal aid. Surely we are acknowledging that and are engaged in scrutinising this Bill in an attempt to limit the damage rather than simply pretending that there are limitless funds available for legal aid. Perhaps I may join the noble Lord, Lord Carlile, and congratulate the Minister and his officials on their response to the concerns that I and other noble Lords expressed about the position of brain-damaged babies. The Government have put down this most welcome amendment. I genuinely believe that this is a thoughtful and appropriate concession and an indication that the Government are trying to address some of the very difficult situations which this legislation throws up.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Faulks
I support the amendment. When it was debated in Committee, the Minister said that he would reflect on the observations of many noble Lords across the House who had contributed to the debate. It was one of many amendments that were considered by the Minister and he reassured the House on a number of occasions that he was listening.
In case I do not get an opportunity in subsequent debates, perhaps I may say now that I am extremely grateful to the Minister and his officials for their constructive approach to some of the issues and in particular one that concerned me; namely, the lack of legal aid for the victims of obstetric injuries—children with brain damage. The Government have responded and put down an amendment that we will debate in due course. However, that approach has not been reflected in his responses to this amendment. As the noble Lord, Lord Pannick, told the House, the amendment reflects the concerns of the Constitution Committee of your Lordships' House, but it contains an important modification by reference specifically to the availability of resources.
I am sympathetic to much but not everything that is in this Bill. I certainly share the Government’s aim to get rid of the worst excesses of the current litigation system and I understand the need for economies in the legal aid system. Nothing about this amendment conflicts with any of those aims. It will not in fact cost the Government anything. Why then is it important?
I consider that it affects the integrity of the Bill as a whole. If some areas of litigation are to fall outside the scope of legal aid, let us none the less ensure that the Bill retains the principle that is represented by this amendment; a principle that has, as your Lordships have heard, a recent statutory precedent. We are concerned about access to justice, which I hope I am not hopelessly romantic in regarding as a fundamental part of what it means to be British. I am uncomfortable with a Bill that declines to recognise this in the form of the amendment that has been put forward or in some similar wording. If he does not accept the amendment, I look forward to hearing the Minister explaining why he will not do so.
Lord Hart of Chilton
My Lords, my name is on this amendment. I support it for the reasons so admirably given by the noble Lord, Lord Pannick. Like him, I am a member of your Lordships’ Select Committee on the Constitution, which identified the importance of a statement of constitutional principle relating to access to justice.
As the noble Lord, Lord Pannick, has pointed out, the wording of the amendment is closely based on Section 4(1) of the Access to Justice Act 1999. Throughout the nine years that I saw those provisions in operation, budgetary restraint urged by the Treasury was always present because in those days, health and education were regarded as of higher priority. Nevertheless, legal aid was regarded as an essential element to access to justice and that principle constantly focused and concentrated the mind. The amendment seeks to do the same. It recognises budgetary restraint. It does not require a blank cheque much as some would wish it. It is moderate in tone and therefore realistic, but it enshrines an important constitutional principle that will overarch and permeate the whole of Part 1 of the Bill.
The Minister said in Committee and will probably say again that the amendment is unnecessary. That is not so. It is of fundamental importance to all of us and is absolutely essential.
Lord Pannick
My Lords, I support what the noble Lord, Lord Hart of Chilton, said, and I should like to add just two points. First, this amendment requires no expenditure of public funds. It is a constitutional amendment designed to ensure that a statement of the vital principle of independence is in the Bill. Independence is of central importance for the reasons that the noble Lord, Lord Hart, gave. Under the Bill we will have someone within the Ministry of Justice, a civil servant, who will perform the sensitive function of deciding when legal aid is allocated, even in relation to claims against government departments, including the justice ministry.
Secondly, I very much welcome Amendment 5, which has been tabled by the Minister. If noble Lords approve it, this amendment will require the director to produce an annual report which will be laid before Parliament. However, welcome as that amendment is, it does not address, far less rectify, the absence of any statement in the Bill about the independence of the director. Amendment 3 would meet the vital need for such a clear statement in the Bill.
Lord Faulks
My Lords, my name is also attached to the amendment, and I have very little to add to what has already been said. I am concerned too with the independence of the director, who will have considerable power over the allocation of what is left of legal aid. Perhaps I may give the House just two examples of where his or her role may be particularly important.
The provision for exceptional funding is still somewhat mysterious with its reference to the European convention and EU law. It is said to cater for quite a number of those cases where legal aid may still be given. How it is used is a matter of considerable importance. In deciding the best way of deploying exceptional funding it is very important that the director should be independent of the sort of influence which is potentially possible from the Lord Chancellor.
Secondly, Clause 4(4) states:
“The Lord Chancellor may not give directions or guidance about the carrying out of those functions in relation to individual cases”.
I am rather more concerned not so much with the individual case as with the type of cases. If the Lord Chancellor should take the view that certain areas of litigation are worrying the Government or should not be pursued, that is not covered by Clause 4(4). Although I am sure that this Lord Chancellor would not seek to exercise any inappropriate influence, it is extremely important that this new creature who will be at the centre of legal aid has independence firmly enshrined in the Bill. I support the amendment.
Baroness Mallalieu
My Lords, I support both this amendment and the amendment that the Government have tabled. For reasons that have already been given, it is crucial that the figure who is the director should not be political in any way and should not, in so far as it is humanly possible, be susceptible to political pressure. That is not only because he will be dealing, as has just been said, with cases that may have political undertones but also because—and I say this as a clinical practitioner—there may very well be a serious crisis in criminal legal aid in the not too distant future which may have repercussions that go far beyond individual cases. It may be necessary that whoever is in the role of the director is prepared to stand up to pressures that might be placed on him in relation to the funds that are available. It is important that he should report, and I welcome that amendment, but that does not go quite far enough. The amendment in the name of my noble friend Lord Hart and others does.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Baroness Butler-Sloss
My Lords, this amendment is a timely reminder of a potential major problem which already exists but which will be much exacerbated in future. I have considerable, sometimes very uncomfortable, personal experience of large numbers of experts in the courts before me, so I should like to make three specific points. The first is on quality.
Quality, as the Norgrove report said, is variable, and I can tell you that it is variable. There are experts who are over-enthusiasts. There were two extreme examples, of brittle bones and salt, which reverberated about the medical consultant profession. The trouble is that they were not the only two. Other experts are giving evidence because they happen to have a line.
When I was president of the Family Division, I had very useful discussions with the Chief Medical Officer about how we could identify appropriate people who one might call middle of the road. They were not at one or the other end of the continuum; they were not people who said, “Nobody ever injures a baby”. I once had 13 doctors giving evidence in a shaken baby case, of which there probably needed to be about five. This was absolutely unnecessary. Half of those experts were giving evidence from a preconceived notion rather than from the evidence that they actually had, and it was extremely difficult to get them to do something sensible. It was an appalling case. It was not the only one—it was just the worst that I remember.
Quality is a real point. It is not the numbers but the people who can do it that matter. The Chief Medical Officer, Sir Liam Donaldson, and I really struggled to see how we could identify for the benefit of the judiciary and the lawyers the doctors who would be middle of the road. It is unfinished business and, particularly in a time of financial stringency, it becomes all the more important. So quality is really very important.
Secondly, it is a problem of numbers—there are far too many. That ought to be dealt with in directions hearings, but they quite often get appointed before the case ever gets to the judge or the justices. Something must be done about numbers.
The third point is fees. There is no shortage of very distinguished doctors, particularly in the London area but right round the country, who will not put their heads above the parapet because they do not want to expend the time and trouble on going to court. On the fees that are now suggested—and I heard the noble Lord, Lord Beecham, talking about £90—I have heard the figure of £63 mentioned in the endless e-mails that I have had, as the noble Baroness, Lady Howarth, was saying. Quite simply, if you cannot get the best experts now, what on earth is going to happen to the welfare of these very high-risk children if they do not have the doctors to help the judge or magistrates to decide whether they can safely go home or will for the rest of their lives be denied the real natural family? It is the most appalling decision. Shaken babies are an example. There is still no agreement on whether having hematomas on the outskirts of the brain within the skull or problems behind the retina is or is not an indication of a child having been shaken rather than suffering a natural trauma. How on earth does a judge try that—and these are High Court judges—if they do not have some help? What they need is good help; they need other people who will turn up and give sensible advice to the courts.
Social workers need more support. They are not having their evidence taken sufficiently seriously, and there is no shortage of cases where it would not be necessary to have several doctors if the sensible social workers’ advice was taken by the courts. Too many local authorities are pulling their social workers out of a case after six months. In a case that takes two years, there may be four social workers in charge, and the result is that no social worker is really on top of a case. If something could be done about that, you would need fewer doctors.
The amendment deals with the review and is a timely reminder of the real need to have a look at this and involve the Chief Medical Officer—if I may respectfully suggest it—to see what could be done to get the right doctors in the right place, and not too many of them.
Lord Faulks
We have heard a great deal, and very helpfully, about the role of experts in family proceedings. I defer to those with much greater knowledge than I have about the various inadequacies in the arrangements that exist there. But this amendment is not, in fact, peculiar to family experts but covers the whole range of experts that assist the court.
Although all is not perfect in the litigation system, it is worth recording that considerable steps have been taken by the courts in the approach to expert evidence, particularly the various changes brought about by the noble and learned Lord, Lord Woolf, that have resulted in the timely exchange of reports, experts’ meetings and even the exciting developments known as “hot-tubbing”, which your Lordships may not be familiar with, involving experts in court at the same time and exchanging views in order to provide a synthesis for the judge in an effective way.
So, the courts themselves are providing a great deal of control over the way that expert evidence is given. The judges and the consumers of experts are in a position to judge the quality of the product, which itself provides a certain discipline that is relevant in deciding which experts are retained and how much use they are. Those of us who practise in the courts are familiar with judges expressing the view that there is no need for expert evidence on this or that case, which helps considerably.
Early directions, timely interventions by judges and the proper application of expertise by the lawyers can result in the provision of expert evidence being satisfactory. The only caveat that I would give from my experience with experts’ evidence, which relates essentially to professional negligence, is that in legal aid cases there is a continuing concern, just as there is in the context of family proceedings, that the rates for expert witnesses is so low that the best experts may not be available.
Subject to that, I am slightly concerned that this is rather outside the province of the Lord Chancellor in terms of accessibility and the quality of expert advice. The courts are making progress and will continue to do so. Nevertheless, I defer to what has been said about the family courts by the noble and learned Baroness, Lady Butler-Sloss.
Lord Thomas of Gresford
My Lords, I would like to illustrate the usefulness of experts. This came from a case that I did three or four years ago. There had been family proceedings in relation to a little child of 11 months old who was found dead but with no visible injury. The case for the adoption of other children took about three weeks, with something like three experts on both sides. As a result, the judge held that the father was culpable but was not going to say that he had actually caused the injuries that the child had sustained. Shaken baby syndrome was alleged, but I discovered that there was a huge divide between experts on that issue.
I advised the instruction of a biomechanical expert and the Legal Services Commission found one from Detroit, who had gained his expertise in car accidents. He was able to manufacture a doll that was of the same size and weight as the 11 month-old child. He demonstrated that, as the child was at the age of feeling around the furniture and pulling himself up on to his legs, not even yet climbing on the sofa, if the child fell over, his back hit the ground and his head followed, that would generate sufficient force to cause precisely the injuries that he had sustained. There had been no history of any previous child abuse; there were no marks, the skull was intact and nothing was broken. As a result of that evidence, the prosecution dropped the murder case that it had brought against the father following the judge’s previous decisions.
That indicates how an expert can make all the difference in a case like that, but expensively. It is to the credit of the Legal Services Commission that it was prepared to fund a report like that which ultimately led to a proper conclusion to the case, but one has to think of all the experts who had been involved in the argument about shaken baby syndrome before the judge. It is vital that experts are properly instructed and funded when they are required but I am sure that there are times when far too many experts are employed, and I accept what the noble Earl, Lord Listowel, has said previously on that point.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Faulks Excerpts(13 years, 11 months ago)
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Lord Elystan-Morgan
My Lords, I find myself very much in sympathy with the sentiments that lie behind both the amendments. I agree with everything that was put so clearly and in such a balanced way by my noble friend Lord Wigley.
In relation to Amendment 175, it could be said that one is dealing with two sets of reports from two different agencies. In so far as anything deals with the criminal history of the defendant, even though it may not be the subject of a conviction, it belongs to the area of antecedents and to the agencies responsible for those. In other words, a bare statement of conviction on a certain date giving the detail of the conviction but no more would be very inadequate if it did not give the sentencing court—whether it be a magistrates’ court or a Crown Court—the background which is so essential for it to decide an appropriate sentence.
Both the agencies concerned—the probation service and those who prepare antecedent reports—are heavily overstrained. That, it seems to me, is the real problem with which one is dealing. These people dearly wish to devote much more time and effort to the preparation of a report but are simply unable to do that due to the exigencies which exist.
Everything that has been said in relation to dependants by the noble Lord, Lord Wigley, and those who support the amendments is corroborated by what I have seen over the years as a solicitor, barrister and judge. There are two stages when a court has to consider whether or not to impose a custodial sentence. First, it has to decide whether the gravity of the offence in all the circumstances of the case brings it over the bar, as it were, to the point where a custodial sentence is appropriate. Having decided that, it then looks at all the other circumstances of the case. Very material to that consideration will be the situation of dependants. It may well be argued, therefore, that it is not necessary to have the amendment, but I urge the Government to take a different view as it would help to concentrate the mind of the sentencer in that direction.
Any wise sentencer—magistrate or judge—knowing that young children may have to go into care or be dealt with in some other way, will have to look at the totality of the situation, having decided that it is an appropriate case for custodial sentence. In other words, the sentencer has to ask whether the totality of the situation is such that the community and the interests of justice are best served by a person going to prison or avoiding prison in some way or other. It is not a question of what the person deserves because that is a narrow, tunnel-vision approach to the whole matter; it is a question of what is proper and just for society and all concerned. I am sure that it is a precept for the wise sentencing court—magistrate or judge—to ask for a full report from the care authority regarding what exactly will happen to children in the event of a custodial sentence being imposed.
Lord Faulks
My Lords, both these amendments are concerned to ensure that the court knows all that it needs to know before sentencing. In my experience as a recorder, the court would be acting very negligently indeed if it were to sentence a woman, or even a man, without knowing the effect of that on the dependants. That is the fundamental point usually made in mitigation. It is very much part of the picture that any sentencing tribunal would have to take into account. If for some reason an advocate or the probation service was not giving sufficient information about this, the court would ensure—by adjourning if necessary—that that information was available. Therefore, although I accept the points made about the necessity to take all these facts into account, these amendments are designed to tell the courts what to do. I respectfully submit that the courts know what to do.
Lord Howarth of Newport
My Lords, I fully support the intentions of these amendments. I admired the speech by the noble Lord, Lord Wigley, but seek clarification from him. I have a question about feasibility and practicality. I am not sure whether it is intended that the requirements in these amendments should extend to magistrates’ courts as well as to the other courts. However, if one considers the circumstances in which the magistrates’ courts were operating last summer, following the riots, when they transacted an extraordinary volume of cases, worked under extreme pressure and sat until late at night, I wonder how realistic it is to lay upon those courts the requirements that these amendments would lay. I had misgivings about the magistrates’ courts working in that fashion but I recognise that what they did at that time was seen by the public as entirely appropriate in a situation of exceptional crisis. Perhaps what I am really saying is that there is no substitute for having enough courts that are sufficiently resourced and a probation service that is well enough resourced, and for the courts to do their work as far as possible screened from the pressures of the media and politics. However, that is a rather fanciful state of affairs to desire.
I therefore simply ask the noble Lord, whose purposes I thoroughly endorse, to explain, if he will, how he envisages these requirements actually working in practice when the courts are under severe pressure.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Faulks Excerpts(14 years ago)
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Lord Faulks
Lord Faulks
My Lords, the amendment is in my name and that of the noble Lord, Lord Pannick, and others. The noble Lord, Lord Pannick, asked me to give the House his apologies for his unavailability today. The amendment concerns Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. I have considerable concerns about that power.
First, this allows for still further reductions in the scope of legal aid by means of delegated legislation. Your Lordships' House is currently debating the scope of legal aid. For example, we are shortly to consider the withdrawal of legal aid for clinical negligence. The power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. There should surely be the opportunity for such debate if the Lord Chancellor is inclined to restrict in future the scope of legal aid.
Furthermore, although the Lord Chancellor can remove legal aid from the scope in areas he thinks appropriate, he is not given the concomitant power to restore legal aid. There are two circumstances in which he or his successor might want to do that. The first is if there was an improvement in the economy. The cuts in legal aid are, as the Minister has repeatedly said, needed as a result of the Government's overall strategy. Should matters improve, there should be an opportunity for the Lord Chancellor to restore legal aid within the terms of the Bill.
There is another reason. However well planned the cuts are—I know that much criticism is made, particularly by the party opposite, of the lack of an impact assessment—it is difficult to be absolutely confident about the effect. For example, I do not think that the party opposite had any idea of the extent of the take-up of conditional fees when it introduced changes in the Access to Justice Act.
I suggest, further, that the uncertainty about the effect of legal aid was acknowledged by the Government themselves in last year's Community Legal Service (Funding) Amendment Order 2011. The Explanatory Memorandum stated that,
“the LSC will monitor the situation to ensure that they are aware of any market shortfall and the Government will work closely with them so that that they are able to respond promptly, effectively and appropriately”,
should this materialise. The Lord Chancellor should be able to respond in a like manner should there be some egregious examples of market shortfall or the establishment of legal aid deserts. Your Lordships’ Constitution Committee said in paragraph 20 of its report that if the Lord Chancellor is to have the power to take away by delegated legislation, he must also have the power to provide.
The amendment is intended not to be destructive but to improve the Bill so that, within the constraints considered necessary by the Government, there should none the less be a proper reflection of the principles of access to justice. This amendment and others in the group should help to achieve this. I beg to move.
The Lord Speaker (Baroness D'Souza)
My Lords, I should remind the Committee that, if this amendment is agreed to, I cannot call Amendments 23 to 27 for reasons of pre-emption.
Lord McNally
I did hear the noble Lord’s speech. I was merely pointing out that as a parliamentarian I, too, have worried about the overreliance on secondary legislation, which is a point that I would concede to him.
There is no doubt that there is great strength of feeling about these amendments. I assure the Committee that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments—not all of which mesh together—so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.
Lord Faulks
My Lords, I am very grateful to all noble Lords who have spoken in this debate. It is a matter of happenstance that I am dealing with this amendment. The other amendments are in the same spirit, although to slightly different effect. I do not wish to intrude on the spat between the noble Lords, Lord McNally and Lord Bach. My concern, in this amendment, is not so much the detail, which we are going to develop in due course in argument, but more the question of principle, which I would suggest, and others all round the Committee have suggested, is at the moment embodied in this clause in a most unsatisfactory way.
I am, however, very grateful for the conciliatory noises made by the noble Lord, Lord McNally, and for his assurance that what has been said in this debate, and what has been said in the various committees that have considered this clause, will be noted by the Lord Chancellor. I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.
Lord Wigley
My Lords, I rise to speak to the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd of Berwick, to which I have added my name. It would go some way towards rectifying the alarming situations that may be faced by individuals who have been disabled due to clinical negligence.
Many people involved in cases arising from clinical negligence by a public authority are among the most destitute. These cases will frequently involve parents or other family members bringing cases against public authorities as a result of traumatic injuries sustained by their children or other relatives. Considering the inequality of arms that inevitably arises, having access to expert reports is vital.
What is perhaps most distressing in cases centring on charges of clinical negligence is that individuals will come up against the state, with its teams of lawyers, during proceedings. Never is an inequality of arms more blatant than in those situations. This is somewhat ironic when we would all agree that the state should have a responsibility to ensure that an individual has the means to hold it to account.
To put this debate into context, there are about 1 million adverse accidents in the NHS every year. About 10,000 of those lead to action being taken against the NHS—in other words, about 1 per cent. These figures gainsay the claim that we live in a compensation culture, at least in this context. People who make these claims may have suffered grievous harm at the hands of a public authority, and they have every right to legal assistance in seeking redress.
What is more, and as the Unintended Consequences: the cost of the Government’s Legal Aid Reforms report, published last week by King’s College, made clear, charging ahead with these reforms would be economic nonsense, as the noble and learned Lord, Lord Lloyd, said. The report states that the proposed changes surrounding clinical negligence cases will cost the NHS some £28.5 million, which is nearly three times the amount to be saved by the Ministry of Justice—about £10.5 million. The figures may be slightly different but the ratios are the same.
Moreover, the Government have not yet specified how they intend to deal with the problems that will arise if legal aid is withdrawn from these cases. As the Bar Council has argued, the Government seem to assume that most clinical negligence claimants will receive representation under a conditional fee arrangement—that is, from a no-win, no-fee solicitor. They also seem to assert that the cost of funding expert reports will be paid for by the retention of recoverable “after the event” insurance premiums. If, however, the Government succeed in implementing these proposed changes to Part 2 of the Bill, clinical negligence cases, which are frequently among the most complex, will present too much risk, preventing most solicitors taking on cases on a no-win, no-fee basis. The difficulties involved in establishing liability will simply be too great.
What is more, under Part 2, after-the-event insurance premiums will no longer be recoverable from defendants, and a number of insurers have said that they will pull out of the ATE market. As the Bar Council once again made clear, it is highly unlikely that ATE insurance will be available for expert reports—hence, victims of negligence will be unable to establish whether their case has merit.
In these proposals, the Government appear to have lost sight of their duty to protect the vulnerable from further harm. Moreover, they have failed to provide a robust alternative to counter the inevitable damage to justice that would ensue if the proposals in the Bill went through unchecked. The Government must retain their responsibility to protect the vulnerable, and I hope that they will listen to the criticisms made in this debate.
Lord Faulks
My Lords, all the amendments in this group are directed towards the retention of legal aid in clinical negligence cases. This is an area in which I have practised as a barrister for the past 20 years or so, acting for both claimants and defendants; I continue to do so.
I should emphasise that in making these few remarks I am not against Part 2, which brings into effect the Jackson reforms. Litigation costs have become wholly out of control, particularly in smaller cases, where legal costs tend to dwarf the sums at issue, and litigation has far too often become concerned about legal fees and the recoverability of insurance premiums rather than what should really be at the centre of the dispute.
However, we should acknowledge that if Part 2 becomes law, difficult cases will be less attractive, as the noble Lord, Lord Wigley, has rightly pointed out. There will be no success fee recoverable, nor ATE premiums, and there is a significant risk that complex but meritorious cases will be uneconomical for legal practices to pursue. The paradigm case which concerns me—and, I dare say, many other noble Lords—is that of a brain-damaged baby. Of course, there are other entirely worthwhile and difficult cases, but such cases are particularly complex and often need many experts to tease out whether there is a case on liability or causation. Without legal aid, individual litigants or solicitors will have to carry investigative costs of many thousands of pounds before, in many cases, deciding that there is no claim to be pursued. There will, however, be quite a number of cases where entirely meritorious claims will simply be unfeasible, so that those who have to bring up brain-damaged babies will be unable to have the consolation and substantial financial assistance which a successful claim may bring as some slight mitigation to the hardship which the child and the child's family will have to undergo for the rest of that child's life.
I understand that the Government have acknowledged that there is potential injustice in the removal of legal aid for such cases. What answers have they put forward in what I acknowledge as being a constructive exchange of views in this area? The first is that CFAs should be available. I am unconvinced of that. Availability would be theoretical only. At the very best, some of the largest firms might take on the occasional case on the basis that they could bear the risk of funding it, but no individual will be able to do so. The second answer given is that exceptional funding within the terms of the Bill will be available in such cases. That is on the basis, as I understand it, that funding will be forthcoming in circumstances where there would be a violation of an individual's convention rights if there were to be no legal aid.
I pointed out at Second Reading that clinical negligence cases very rarely involve any human rights violations. To that argument comes the rejoinder that the relevant article of the convention is Article 6—the right to a fair trial—and that if the circumstances are such that Article 6 is violated, exceptional funding will be forthcoming. The problem with that answer seems to me to be that the jurisprudence from Strasbourg concerning the circumstances in which the denial of legal aid or other state support would constitute a violation of Article 6 is considerably lacking in consistency and coherence. I do not see how anyone could advise their client with any confidence that the refusal to provide legal aid would constitute a violation of Article 6. That means that the exceptional funding answer is remarkably insecure. If it is really the case that the refusal to provide legal aid in such cases constitutes a violation of Article 6, I venture to suggest that there may be some difficulty in justifying the declaration of compatibility with the Human Rights Act which has been signed in relation to the Bill.
If there is indeed an intention to provide funding for the sorts of cases that I am discussing, why not place the provision of such funding in the Bill rather than rely on the vagaries of exceptional funding and potential challenges by way of judicial review or otherwise if a determination turns out to deny access to legal aid in such cases? I appreciate that in the other place the Minister, Jonathan Djanogly, made some reassuring remarks in this area, but they went nothing like far enough to inspire the sort of confidence that is needed that these claims can be pursued.
Lord Beecham
My Lords, this has been a very thoughtful debate, and that owes much to the fact that so many of those who have participated have experience, either legal or medical, of cases of this kind. They are certainly among the most difficult that either clinicians or lawyers have to deal with. The noble Lord, Lord Wigley, referred to the rather alarming statistic that 10 per cent of National Health Service patients in any year suffer from clinical negligence. That ought to concern all of us, especially those with responsibility for the health service.
However, it is also right to point out that this does not give rise to a spate of litigation. In view of the numbers of people who must suffer from clinical negligence, the fact that only around 10,000 or 11,000 cases a year receive legal advice, and of those only about 3,500 proceed to receive legal aid for representation, completely contradicts the assumption that there is a compensation culture—certainly in this area of law and, many of us would argue, generally. There is no compensation culture. However, it is a measure of the scale of the need for representation that of the successful legal aid cases—some 1,500 cases adjudicated in, I think, 2009-10—the average period during which these cases were pursued was as long as 55 months. That might partly be a reflection of the complexity of the evidence, or partly of the fact that you cannot really settle a case until the prognosis becomes clearer, until a client’s needs are defined, particularly in the case of children who suffer perinatal injuries or other forms of clinical negligence. Obviously their future lives cannot be predicted with any certainty at too early a stage. However, it also owes something, as the noble Lord, Lord Thomas, pointed out, to the reluctance of authorities—the NHS bodies and, I suppose, private bodies—to admit liability.
Lord Faulks
My Lords, would the noble Lord confirm that one of the causes of delays is that in complicated cases—we have been concerned with perinatal injuries—there are a number of different experts who have to report? One expert is not enough; you have an obstetrician and you may have a paediatric neurologist, a neonatologist, a neuroradiologist, a midwife and possibly even a geneticist. Trying to make sure that all those experts bring their expertise to bear at the same time and co-ordinate can itself be a reason for delay and therefore for the complexity of these cases.
Lord Wallace of Tankerness
My Lords, we certainly believe that going down this road will mean that poor people do not have to pay up-front for their necessary expert reports. Indeed, that is why we draw a distinction between our reforms as they affect clinical negligence and the reforms that affect claims for damages in other areas.
We are working closely with the NHSLA and other stakeholders to discuss how the commissioning of these reports can be improved so that joint expert reports can be commissioned wherever possible. That would involve the NHSLA commissioning and sharing expert reports on liability with claimants at an early stage. There is a lot of agreement that that is what we should be doing—trying to get it at such an early stage. That, in turn, will help to encourage the early notification of claims.
My noble friend Lord Faulks and the noble Lord, Lord Wigley, expressed some concern about whether there would be a market for ATE insurance if it was not recoverable in other areas. We certainly recognise that these concerns about the funding of medical expert reports have been expressed, but the reality is that claimants usually take out ATE insurance. We expect the ATE market to adapt to the new arrangements. As my noble friend Lord Faulks accepted—although he queried whether it should have been done earlier, rather than during the passage of legislation—a working party has been set up to consider the recoverability of ATE and to ensure that premiums for expert reports reflect the risks involved. ATE insurance brokers have been asked to contribute to this working group. It is a concern to which we are alert and one that we seek to address.
Furthermore, we wish to reassure the Committee that we will be introducing qualified one-way cost shifting, which will be available in personal injury claims and, therefore, will by definition apply in clinical negligence claims. Qualified one-way costs shifting will mean that, in the majority of cases where damages for clinical negligence are sought, the claimant is not at risk of having to pay a winning defendant’s costs. We have therefore protected the claimant’s interests to ensure that they are not denied access to justice for fear of having to pay the defendant’s costs if they were to lose.
One of the main areas of concern in respect of expert reports is those cases concerning babies who suffer obstetric brain injury. This has been reflected in a number of contributions. While we consider that in most clinical negligence cases funding will be available through a combination of conditional fee agreements and ATE insurance, we have always recognised that there may be obstetric injury cases with high disbursement costs, which are currently funded by legal aid but for which it may be difficult to secure conditional fee agreements.
My noble friend Lord Faulks expressed concern as to whether the provisions in Clause 9 with regard to these exceptional payments, which we will debate later, would be fit for purpose and meet the task which we wish them to achieve. It is because of this that we have sought to make funding available. The safety net would be in the form of an exceptional funding scheme, which will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law. In considering whether exceptional funding should be granted in cases engaging Article 6 of the European Convention on Human Rights, the director will take into account general jurisprudence set out by the European Court of Human Rights on Article 6. The jurisprudence takes into account the following relevant factors: the ability of the client to present his or her own case; the complexity of the matter; the importance of the issues at stake; and all other relevant circumstances. It is important to put this into context. Our impact assessment estimates that we will continue to spend £6 million of the £16 million we currently spend on clinical negligence cases on exceptional funding cases. We estimate that the vast majority of this £6 million—
Lord Faulks
I am very grateful to the Minister for giving way. Can he help the House as to whether it is the Government’s position that a cohort of cases such as brain damage cases, which are exceptional to the family but do not raise exceptional points of law, would nevertheless be regarded, if there was no legal representation, as a violation of Article 6?
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Faulks
My Lords, most Members of this House would approve of the idea of having good-quality expert evidence in cases. In the area in which I practise there have been considerable strides forward in that regard. Although the noble Lord, Lord Beecham, speaks of hired guns and undesirable practices, it should be known that much has improved in this area, not least thanks to the major contribution of the noble and learned Lord, Lord Woolf, the CPR, the exchange of experts’ reports, experts’ meetings and a sensible control of the questions that are asked, so I would not like the House to get the impression that the world is a jungle where experts are concerned. Litigation is much more orderly than it was and the noble and learned Lord, Lord Morris, is quite correct that good experts often produce settlement and good results.
While I certainly applaud the sense the amendment, which is to encourage good-quality experts, the reason why they are sometimes not available is not simply because of money. There are difficulties simply in finding the right experts for the right cases because they have other commitments. Let us take paediatric neurology, for example, an area that is particularly important in clinical negligence cases. Very few are available, and they are very often not available for many months. In other words, there are factors that are not easily within the reach of any form of legislative provision. While approving the general spirit of the amendment, I would countenance some wariness in enshrining this in any legislative form.
Lord Howarth of Newport
My Lords, as everyone who has spoken has said, it would self-evidently be a false economy and prejudicial to justice if the Government were not willing to spend the money that they genuinely need to spend in ensuring that the expert evidence required is available to the courts. I ask my noble friend Lord Beecham, who moved the amendment, and the Minister—if, as he surely must, he agrees with the thrust of the amendment at least—what their views are on the appropriate methodology under the amendment. Does my noble friend consider that there should be some sort of standing body independent of the Ministry of Justice that would have the task of keeping this issue under continuous review and to report from time to time? I would have thought that it would be a continuing necessity for the Lord Chancellor to have the benefit of such advice so that he can be sure that the taxpayer is not being asked to spend more than is genuinely necessary under this head, but equally to be sure that sufficient resources are being provided. How does my noble friend or the Minister envisage that this function should be carried out? Perhaps they could say something about the practicalities of ensuring that that takes place, as that would be helpful.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Woolf
My Lords, as is always the case, the noble Lord, Lord Pannick, has summarised the arguments in support of the amendment with admirable clarity. There is very little that I can add but, looking at these provisions, I should have thought that the Minister—although he may prove me completely wrong—would say, “Of course, that’s exactly what I will do. I will see that the person appointed as director has the qualifications that I consider necessary. How could I do otherwise?”. Likewise, I should have thought that he would say that of course the director must be independent. However, I urge the Minister not to be led astray by some argument on those lines. It is significant that the committees have expressed the concern to which the noble Lord, Lord Pannick, referred with the view that the position should be clearer. I say respectfully that the committees were right to take that view. We are concerned here with access to justice, which is a fundamental constitutional right. Where a right of that sort is involved, it is appropriate that the position is dealt with clearly.
The issue of what sort of civil servant would be appropriate to fill a particular role is always difficult. I remember a time when it was automatically assumed that any Permanent Secretary in what became the Lord Chancellor’s Department would be a qualified member of the Bar or a qualified solicitor. That no longer happens; the days when a barrister or solicitor would perform that role are past.
It is a different type of task that the director will perform. He will have the say-so in determining who is given access to justice—because without legal aid there may be no access to justice, and we all know that that would be a very worrying situation. Therefore, perhaps the Minister will recognise that, irrespective of the good intentions of an officeholder, sometimes it is of benefit if the person concerned is familiar with the subject involved. The experience of senior civil servants filling roles of this sort is that often departments do not feel comfortable with the independence of one of their civil servants who has been—if I may put it this way—seconded for a time to fill an office such as the one about which we are talking. In that situation it is very easy for a department to start giving instructions to “one of their own”—a civil servant whom they see as belonging to the department.
I hope that the Minister will forgive me if I give an example that occurred just before Christmas in connection with the Bill and which caused me to write to him on behalf of two of my noble friends who, with me, wanted to get the assistance of the chief executive of the NHSLA, Steve Walker. A later amendment suggests that there should be a process and a safety net to ensure that, where there might be a claim for medical negligence, a medical report should be obtained prior to litigation being started. We wished to have the advantage of the great experience of that official but were told politely and courteously that he would not be able to give us that assistance because the subject was too political for him to become involved with. I was very surprised and I am now glad that the Minister has properly responded to my concerns—although I have not received his letter—and that the position has been rectified. However, it illustrates how easy it is, when a senior civil servant is on attachment in a role such as that of the director, for those who are experienced in a department not to appreciate how important it is not to interfere with the independent way in which the individual performs their functions. Therefore, these amendments are sensible and I hope that the Minister will feel able to accept them.
Lord Faulks
My Lords, I, too, support the amendments. I will be brief, as the reasons were so admirably summarised by the noble Lord, Lord Pannick, and by the noble and learned Lord, Lord Woolf. The post of director will be critical for the preservation of whatever is left of legal aid. The concern of the committees was that there was at least the potential for conflict, as has been outlined, because the director might seek to follow the direction of the Lord Chancellor and not be suitably independent.
May I give your Lordships an example of how important the director’s powers may be and of how important it is that he or she should be seen to be independent? He will have to determine whether a case falls in the so-called exceptional cases category under Clause 9. I understand that the Minister may well be telling us in due course that this category and the availability of legal aid for exceptional cases is an effective answer or partly an answer to the apparent deprivation of access in relation to clinical negligence. I think that some of your Lordships may need some satisfying in this regard, but that I believe is one of the answers to the apparent lacuna.
Whether a case falls within the exceptional case category is bound to be somewhat controversial. Even the current decision-making exercised by the LSC is not short of critics. However, if a director is seen simply as doing the bidding of the Lord Chancellor at the relevant time, confidence in his independence will be significantly undermined. If a Lord Chancellor—not this Lord Chancellor, of course—were to decide that too many claims were being brought against government departments or the NHS, he could, at least in theory, give some rather firm guidance to the director on the process of determining such exceptional cases. Therefore, I suggest that it is vital that decision-making about the availability of legal aid should be seen not to have even the appearance of being at the whim of the Lord Chancellor or Cabinet colleagues but rather to be the proper determination by a suitably qualified director on grounds not of political expediency.
I dare say that this is very much what the Government’s true understanding of the director’s role is, in fact, to be, in which case I hope and expect the Minister to welcome these amendments, which set out, I hope in clear terms, what may be the underlying intention of the Government about the role of the director and his or her independence.